“House of Lords clarifies crucial distinction between trusts and powers”
Calouste Gulbenkian's will created a power of appointment allowing trustees to appoint income among his son, his son's widow, and his son's children. A question arose as to whether this created a trust or a mere power, and what test should apply for certainty of objects.
Whether the disposition created a trust or a power of appointment, and what test for certainty of objects should be applied to powers as distinct from trusts.
The disposition created a power, not a trust. Powers of appointment require only that it can be said with certainty whether any given individual is or is not a member of the class (the 'given postulant' test).
This case fundamentally clarified the distinction between trusts and powers, establishing different certainty requirements for each. It provided the foundation for modern understanding of fiduciary discretions in equity.
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OSCOLA Citation
Re Gulbenkian [1970] AC 508 (HL)
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