TRUSTS AND POWERS
‘Trust, Power and Duty’ 87 L.Q.R. 310
Donovan, ‘The Protector: New Wine in Old Bottles?’ 63, in Trends in Contemporary Trust Law (Oakley, ed) (Clarendon Press, 1996). Thomas, Powers (1999, Sweet & Maxwell Ltd)
Difficulties Inherent In Making The Distinction
Hanbury & Maudsley (13th edition) p.163:
‘Essentially a trust is imperative and a power discretionary. But the dividing line is not as clear as one would hope; for many trusts contain discretionary elements; and many powers are given to trustees who are governed by fiduciary duties in the exercise of their powers.’ McPhail v. Doulton  AC 242 at 448G per Lord Wilberforce: ‘It is striking how narrow and in a sense artificial is the distinction...between trusts, or as the particular type of trust is called, trust powers and powers...A layman and, I suspect, a logician would find it hard to understand what the difference is.’
Confusion Of Terminology
Mettoy Pension Trustees Ltd v. Evans  1 W.L.R. 1587
Power Or Discretionary Trust May Be Contained Within An Existing Trust 4.
Question Is Linked With Requirement Of Certainty Of Intention (see III.
Exhaustive and Non-exhaustive Discretionary Trusts
Re Gourju’s Will Trusts  Ch 24
Making The Distinction
Asking The Correct Questions
Two distinct but allied questions when interpreting a disposition: a.
Does the disposition create a power of appointment or a discretionary
What obligations - if any - are there on the person vested with the discretion to exercise it? * considered infra. under certainty of intention
The Four Possible Ways In Which A Disposition May Be Interpreted a.
Need For Consistent Terminology
Power of Appointment - mere and fiduciary
Dispositions/Discretions To Appoint
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