Lionel Smith, ‘What is Left of the Non-Delegation Principle?’

In 1944, the House of Lords held that outside of the field of charitable bequests, a testator cannot delegate the power to select who will benefit from his estate. This holding has never been called into question by English appellate courts, and has been followed in many Commonwealth jurisdictions. If taken seriously, however, this principle would seem to exclude the possibility of giving executors, estate trustees, or other persons any discretionary powers relating to the distribution of the estate. And yet, not only were such powers taken to be valid before 1944, but a significant number of decisions afterwards have held that such powers can be created, and indeed that there is no limit on how wide they can be; a testator may create a ‘general’ power which allows the donee of the power to distribute the relevant property among anyone in the world.

What, if anything, is left of the non-delegation principle? This paper synthesis several decades of case law and commentary to reach the paradoxical conclusion that the common law does, and does not, allow a testator to delegate his will-making power.

Smith, Lionel, What is Left of the Non-Delegation Principle? (June 22, 2015). B Häcker and C Mitchell (eds), Current Issues in Succession Law (Hart, 2016, forthcoming); King’s College London Law School Research Paper No 16-10.

First posted 2016-03-03 16:04:39

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