The differences in the approach to certainty of objects for fixed trusts, discretionary trust and fiduciary powers of appointment are a clear demonstration of judicial pragmatism. Critically discuss by reference to specific legal examples.

Ottavio died recently. In his will he created a trust for the benefit of Zerlina and Masetto, and he named Anna and Elvira as trustees. Anna is a teacher and Elvira an accountant. The subject matter of the trust included £1,000,000 cash in the bank, 300,000 shares in Commendatorre Holdings, and a collection of musical scores (some with autographs of composers and performers). Anna and Elvira were concerned that the bank account was not yielding a high enough income and withdrew the £1,000,000. They had always wanted to run a hotel and have seen a guest house in Venice, Italy, on the internet which, according to the on-line property adviser, was a ‘very promising investment’ for £1,000,000.

Zerlina and Masetto are both vegans. Commendatorre Holdings own a chain of High Street butchers shops. Zerlina wrote to Anna and Elvira to express concerns about the investment in the company, and asking that the shares be sold and the proceeds invested in vegan-friendly companies. Anna and Elvira have ignored the request.
Anna and Elvira took possession of the musical scores, but there were a large number of books of them and they required a large amount of space to store. Anna and Elvira resolved to sell the scores.

They approached their friend Giovanni, who owned a second-hand book shop, for advice. He was not an expert in musical scores, but took a sample to his friend Leporello, who specialised in such things. Leporello immediately saw that the scores contained many extraordinary pieces and that a very large profit could be made from the collection. He offered £10,000 for the whole collection and Giovanni passed on the ‘good news’ to Anna and Elvira. They were very pleased with the offer and sold them to Leporello immediately. Leporello sold the whole collection at various auctions and made a £2,000,000 profit.
Advise Zerlina and Masetto.
(1,200 word limit)

Critique/ essay question:

It is easier to criticise the law relating to certainty of objects than it is to devise a workable alternative. The differences in the approach to certainty of objects for fixed trusts, discretionary trust and fiduciary powers of appointment are a clear demonstration of judicial pragmatism.
Critically discuss by reference to specific legal examples.

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