It was only a year later in McPhail v Doulton[2] that the 'is or is not' test was considered appropriate for discretionary trusts by a different panel of their lordships.

The Court of Appeal held that the trust should be declared valid,[4] so long as any claimant could be said to fall within the class at hand.

[5] In all these cases if there is some particular person at hand, of whom you can say that he is fairly and squarely within the class intended to be benefited, then the clause is good.

You should not hold it to be bad simply because you can envisage borderline cases in which it would be difficult to say whether or not a person was within the class.

It is… the duty of the court by the exercise of its judicial knowledge and experience in the relevant matter, innate common sense and desire to make sense of the settlor’s or parties’ expressed intentions, however obscure and ambiguous the language that may have been used, to give a reasonable meaning to that language if it can do so without doing complete violence to it.