It is the judgment of Lord Wilberforce that prevails in the present context and a brief description is desirable if we are to compare and contract powers and trust duties. The nexus of his argument was that he wished to get to the heart of the settlors intention, this being so, he felt that a strict "complete list test" for trust powers against the "is or is not" test for bare powers was illogical. This was because the test for the construction of a trust power or bare power were contentious. The words used determined the appropriate power, which could seem almost identical, thus "shall" was constructed as a duty whereas "empower" was constructed as a power. Problems were sure to arise with neutral words and the courts clearly recognised this in the Court of Appeal judgement in McPhail-v-Doulton in the maxim "ut res magis valeat quam pereat", if the construction is equal one should chose that which validates. Lord Wilberforce wanted to clear up this matter, which may be one reason why he chose to construe the donors intention as creating a duty, as opposed to a power which the Court of Appeal and First Instance did, then continued to bring into line the two powers. He did this by dispensing with the maxim "equality is equity" for the principle that "equity looks to the intent rather than the form" which allowed the courts to execute a trust power not only equally as before but also at their discretion.
To say however that the two powers were identical would be misleading. Their similarity is the test applied and even this is not without distinction. The "is or is not" test for trust powers is defined by Lord Wilberforce as requiring "a wider and more comprehensive range of enquiry" than a mere power. This, a rejection of Lord Dennings "one person" test in the Court of Appeal. Lord Wilberforce however gives no reason why such a distinction should be made. He states that the survey should be enough so as to allow the trustee to carry out his fiduciary duty. There seems no logic in this distinction that a mere power is different in its scope from that of a duty. If the settlor wished to benefit a class he would have in mind the range, he could well understand that all the class would not be ascertainable but he must wish as wide a field as practically possible to be surveyed. This is true of a power or duty to distribute income but does not answer the question of the intention of the use of the benefits of the trust. If the settlor intended to benefit the poor then a wide survey is required to assimilate the needs but an intention to benefit the ill could be restricted to those who are, say, in hospital or not working. Thus a distinction between trust powers and mere powers can only be made with reference to the purpose of the individual trusts overall intentions.
It becomes problematic however when the settlor does not define in what circumstances the beneficiaries should benefit. The trustee has absolute discretion as to circumstances he thinks fit to benefit any of the class, therefore a survey of only part of the class would seem unjust, suggesting the better test would be the "complete list" test. It is questionable what this survey must construct. A list cannot be definitive of all the variables so some cut off point has to be made. Harris does not see this as a good distinction. He sees the "duty of inquiry and ascertainment" and the "duty to consider" as purely generic in all but the confused mind of the courts. It would seem that judicial vagueness by Lord Wilberforce would allow the court to define the survey as they go. This is in fact what happened when the case, now Re Baden's Deed Trust No. 2 was remitted to the High Court. All three judges in this case were somewhat constrained in their judgement as Lord Wilberforce had already indicated that relatives were not a class of uncertainty. They however each managed to construct different approaches to how to assertion the literal meaning of relatives.
It is at this point that another division of the two powers can be made. The courts will, in a trust power, intervene much more than a mere power. This seems to be guided by the principle that a power is separate from a trust. Thus a trust power creates a duty to act in some form but a mere power does not. However the courts have seen fit to engage, if not marry, mere power into trusts. If the appointee of the power fails to use it the courts will intervene in certain situations. The courts have imposed a duty on the appointee to consider the use of his power, to exercise it within the trust and not capriciously. These are identical to those of a trust power, the difference being that the courts look willing to administer the [trust] powers whereas they will only stop the use of mere powers if used incorrectly. The exercise of a duty can be given to anybody (a new trustee or the courts) whereas a power is individualistic. It would therefore seem logical that a trust power could be executed by the use of rules suggested by Lord Wilberforce. For mere powers it is difficult to formulate how the courts could justify intervention in a mere power which is not binding on the appointee. This, however, is what they did in Mettoy Pensions Trustees Ltd-v-Evans but significantly this was a case dealing with ex-gratcia payments and pensions, and not tested outside this somewhat special class. Special because it was common practice for the power to be used like a trust power although it was discretionary.
The distinction of which power is created can be important to the objects of power. The donor of the power may wish the donee to exercise the power for reasons not ascertainable in the instrument. He may wish his wife to allocate x to his children or a charity on default to the charity alone. This could be because of many reasons but two could be that he thinks the children might die (they may have a disease) and does not want his wife to suffer the emotional pain of appointment. Equally he may think the children do not need his settlement as they will either be wealthy themselves or unworthy of the gift. If the wife died in the same motor crash as him then on the two different constructions of power the duty may confer some benefit to the children but the power would not. In constructing the power as a mere power the courts are relinquishing the difficult task of deciding the intention of the settlor. It may however have been his last intention to not provide for his children. This is probably the largest gap between the two powers and the most important.
If we bastardise Harris's argument on rights, then the trust power creates a "liability" on formation of the trust. This is because such [trust] powers create rights to which beneficiaries have a claim. The courts are however unable to allow the trust to be collapsed, as in Saunders-v-Vautier, because they cannot define the complete list of all beneficiaries. Thus collapsing a trust would not seem possible, but there must be a time when the "is or is not" test is so complete that it becomes a "complete list". Lord Wilberforce may have had this in mind when he spoke of the "administratively unworkable" trust. It is however unlikely that such a wide class would be traced and give permission to collapse. The question would be purely academic if it were not for the rights bestowed under a mere power. The [mere power] rights are not actionable in the courts, as these powers cannot be executed by the courts. Those who would benefit under a "default of appointment" may not be the same as those who are the "objects of power". Thus a person who would benefit under default would rather the power be a mere power, which would default to them, as against a trust power which would, if not used, be a breach of trust thus allowing the courts to "appoint new trustees, direct the trustees to distribute or distribute themselves". The "liability" in a power is not formed on the creation of a trust, which makes the distinction between powers unfair only to certain parties in certain situations.
In conclusion it would seem that much sympathy was expressed by both Jenkins L.J. and Lords Hodson and Guest, the latter preferring to change the law by legislation, on the inadequate state of the law. The tests for a mere power and trust power has however been shown to lack the ability to merge. The problem is not with the tests themselves but the idea that the doner understood the very tight distinction between the two powers, and even if he did, that it may not necessarily be his intention to deprive the donee the power he has conveyed. What has failed to be considered is that the donee has conveyed all legal and equitable interest in the property on trust. Perhaps then the donee has also passed the rights of interpretation also ?
