FIDUCIARY POWERS

Abstract

The notion that there are some powers falling between duties and discretionary powers is part of the conceptual framework of property law, and is deeply embedded in the law relating to powers under trust instruments. To demonstrate that the terms have been used in a variety of ways, producing considerable confusion and analytical difficulty, this article surveys the categories of power, their historical backgrounds, the role of the courts and the application of the principles in practice. Language relating to “trust powers” or “powers in the nature of trusts” has been unhelpful and sometimes misleading concerning releases, the implications of gifts in default, assignments, survivorship and delegation of testamentary power. The author expresses the hope that alternatives will be found to such language, especially with respect to the distinction between trust powers and bare powers regarding certainty of objects.