Rights of beneficiaries of discretionary trusts

A proprietary interest in the fund

In the case of a power of appointment it is clear that the objects of the power have no proprietary interest in the fund unless an appointment is made in their favour. In the case of a fixed trust the beneficiaries have equitable title to the property held on trust for them, and may compel the trustees to transfer the legal title to them under the rule in Saunders v Vautier (1841) Cr & Ph 240. The position of the beneficiaries of a discretionary trust is not so clear cut and has led some commentators to suggest that they have a ‘quasi-proprietary’ right, [1982] Conv 118. The rights of the class as a whole are essentially different from the rights of any individual members of the class.

A proprietary right for the class as a whole

By analogy with fixed trusts, since a discretionary trust is a mandatory equitable obligation and the trustees must distribute the fund amongst the beneficiaries, it would seem logical that the equitable title to the property is vested in the class of potential beneficiaries as a whole. This approach was taken in Re Smith, [1928] Ch 915, where property was held by trustees on discretionary trust for Mrs Aspinall and her three children. Romer J, following the Court of Appeal decision in Re Nelson, [1928] Ch 920n, held that the class as a whole could have come to the trustees and demanded the transfer of the legal title.

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  • A proprietary right for individual beneficiaries