ABSTRACT
A relationship of confidence was at the heart of trusts embodying discretionary powers until the end of the XIX century. Modern discretionary trusts are centred on powers of appointment in respect of beneficiaries who are only discretionary objects. Modern discretionary trusts are dubbed ‘ostensible’ discretionary trusts when the discretion held by the trustee is severely curtailed by settlors, who often double as trustees. The pre-eminence of settlors of ostensible discretionary trusts is such that there is no relationship of confidence between them and their trustees. Ostensible discretionary trusts are invalid because all the basic characters of trusts fail.
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Maurizio Lupoi, Discretionary powers and ostensible discretionary trusts, Trusts & Trustees. Published: 2 December 2024.
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