that the words must be imperitive….Secondly, that the subject matter must be certain
….and Thirdly that the object must be as certain as the subject must be certain as the
subject.’
In short there must be certainty of intention (or words), certainty of subject matter and certainty of objects.
Such cases such as Re Adams and the Kensington Vestry 1884 shows that the modern approach to the
use of words expressing hope, confidence, belief or desire (precatory words) such words indicate an
intention to rely on the conscience of the recipient of the property, to the exclusion of a legally
enforceable obligation.
Certainty of intention must be clear that the settlor intended that the property transferered to the trustee
be held in trust, as a binding obligation. The language used by the settlor must be imperitive and not
merely an expression of wishes or creating of legal relations. However equity looks to the intent rather
than the form Re Williams 1897, ‘no particular form of words or magic formula is required to impose a
trust on the holder of property to carry out the settlors wishes as opposed to a mere moral
obligation expressive words or a hope or desire does not disclose a suficient intention to create a trust
unless, on the whole construction of the gift is the intention of a trust, unless on the whole construction
of the gift is the settlors intention Lambe v Eames 1871 although a settlors use of words which have
been previously been held to establish a trust, is good evidence of certainty of intention Re Kayford
1975. In some cases even the word trust will not impose a trust at law Tito v Waddel
1977circumstances in which the court will accept that there is sufficeient certainty of intention to have
a legal obligation on the holders of property to carry out the settlors wishes will vary from case to case.
The primary question must be whether the person disposing of the property (the settlor) intended any
legally binding obligation at all. Re Snowden
The real question is, what did he intend should be the sanction? Was it to be authority of a Court Of
Justice, or the conscience of the devisee?’
If the trust arises out of the settlors beaviour or the settlor leaves ambiguuos instructions this proves to
be more dificult. It is not necessary to use the word ‘trust’ to set up a trust. Kinloch v Sec of State for
India 1882
Consequently, expressive words of a mere hope or desire does not disclose sufficent intention to create
trusts unless, on the whole construction of the gift was the intention of the settlors Lanbe v Eames 1871. Re Conolly 1909 , intention of the settlor use of the words which have previously been held to
establish a trust is good evidence of certainty of intention Re Steele 1948. Where precatory words
create a moral obligation or hope but no trust.
Where there is certainty of subject matter it is an equally vital elemnet in the formation of a trust. This certainty
has two aspects firstly it must be possible to clearly identify the property which is to subject to the trust.
Secondly, it must also be possible to define clearly the interests in the trust property to which the
beneficiaries are entitled. For example in Palmer v Simmonds 1854 it was held that the expression
‘bulk of my… estate’ did not allow the subject to be idenfied, even though there was a clear intetion to
create a trust.
Sprange v Barnard 1789 illiustrates the former point that where a settlor left some shares. Clearly the
subject matter of the trusts was uncertain and there was no certainty as to what would be left. Cases
where tangibale property belonging to several persons has been amalgamtaed and a trust is alleged over
a certain number of those items will not result in a trust is alleged over a certain number of those
items will not result in a trust at law because the precise property is not identified as in Re london Wine
Co 1976. If trust property were seperated or clearly marked, there would be no problem nor possibly if
the subject matter of the trust was expressed as a fixed proportion of the total property and not as a
certain specific number of items.
Certainty of subject matter requires not only in the property that will make up the trust, but also in the
specific beneficial interest to the assignee. Where the subject matter is uncertain, no trust is created. It is
as though the test for certainty of intention was unsatisfied. In such a case, if an effective transfer has
taken place, the transferee takes free of a trust. If the property is certain, but the beneficial interest in
uncertain then a resulting trust arises in favour of a settlor.
Great precsion has been required in identifying the subject matter of the trust, for example in Boyce v
Boyce 1849. This seems like a harsh rule, the court chose to uphold the principles that the precise
benficial interest should be detreinable. Uncertainty was not in the trust property but in the beneficial
interest . this type of uncertainty is unusaul, since it is rare for the exetent of the
beneficiaries’ interests to go undefined or to be undefinable Re Challoner Club Ltd 1997.however in
Hunter v Moss the Court of Appeal rules that the subject matter of a trust is certain if immediately afetr
the declaration of trust a court could make an order to enforce it.
certainty of objects.is the last of the three certainties, and perhaps the most important. The objects of
the trust re necessarily certain and objects of the trust. This may appear to be straight forward but it is
crucail feature of he validity of a trust since failure to specify certain objects will mean that the
property will be held on resulting trust for the settlor or the testators estate.problems with the certainty
of objects arise in relations to the three concepts
Lord Wilberforce observed in McPhail v Doulton, each of these dispositions
"is valid if it can be said with certainty whether any given individual is or is not a member of the class and does not fail simply because it is impossible to ascertain every member of the class."
a discretionary trust and a power. Often, they are indeed hard to tell apart (it was not until the case
reached the House of Lords that it became clear in McPhail itself that the disposition was a
discretionary trust).
For fixed trusts, by contrast, the conventional view (defended by Jill Martin and David Hayton in
[1984] Conv. 304) is that the class ascertainability test continues to apply to fixed trusts. This was the
test applied in IRC v Broadway Cottages. Admittedly, the Court of Appeal was wrong (it has
subsequently been held) to apply that test to a discretionary trust, but it is still usually assumed that it is
the correct test to apply to a fixed trust.
What seems to be necessary is that it be necessary to ascertain what the settlor meant.
A disposition is administratively unworkable, however, when it cannot be carried out effectively by the
trustees (or donees of the power). In order to determine this, it is necessary to consider what
information the trustees (or donees of the power) need to carry out their discretions in a fiduciary
manner.
I would sugest that it is also clear that as certainty tests are relaxed, a greater burden is placed on the
administrative unworkability tests, which may be unfortunate in that they are as yet so ill-defined.
.
The correct test was taken to be whether it was possible to say with certainty whether a particular person was, or was not, within the class of potential beneficiaries (often called the `is or is not' test).
The distinction between the tests for certainty in mere powers and discretionary trusts was thought by many to be illogical, given the similarity in their effects. In the House took the opportunity to overturn Broadway Cottages, and make the test of certainty the same as for mere powers, as set out in Gulbenkian.
This new test for certainty caused a deal of confusion, centering on the question whether the `is or is not' test was a semantic test or an evidential test. When McPhail was remitted back to the Chancery Division for reconsideration, it eventually wound up back in the Court of Appeal, which expressed some difficulty deciding whether the trust was valid or not; this despite the ruling from the House of Lords.
Situations where trustees refuse to carry out the trust, courts insisted that there much exist someone with sufficient interest in the trust property able to come to court to compel the trustees to carry out the trust. A final analysis is that the courts must be able to administer the trust themselves. This has lead to a much more rigid certain requirement then might otherwise have been the case.
Any of the certainties are absent then there is no valid express trust will be created consequently thus will depend on the circumstance, the settlor attempts to declare himself the trustee, the declaration will be valid which ever certainty is not satisfied if the legal title is transferred uncertainty of intention to create the trust separate legal and equitable titles then the transferee will hold it free of any trust.
If either the other certainty is absent it would be a resulting trust to the settler subject to one exception Hancock v Watson establishes that there is an absolute gift of property in the first instance and the trust are subsequent imposed on the at property if the trust fails for any reason.
