CERTAINTIES OF TRUST

INTRO
With regards to creating a trust, a trust can and will only
come into existence if there are the three certainties.
Lord Eldon: ...first...the words must be imperative...;
secondly...the subject must be certain...; and thirdly...the
object must be as certain as the subject" Knight v Knight
(1840)
CERTAINTY OF INTENTION
The first, certainty of words (intention) needs to show
that the owner of the property did specifically intend to
subject the property to a trust obligation. The words used
in the trust must make it clear that the trustee is under a
binding obligation to do what is being asked of them
otherwise the trustee is not bound to carry out his
obligations and could therefore after death refuse to do
what he has agreed to do.
The word trust is not essential and does not have to be
used, and this can be seen as set out by Megarry J in Re
Krayford [6] but it is advantageous because it does make
it a lot easier to determine that a trust has been created,
although despite the fact that the term trust is used there
are no guarantees that a trust will be recognized, for
example Midland Bank v Wyatt. Also if the words
demonstrate a different intention then there has been no
trust created, intention has to be clear and certain
because anything else will not constitute a valid trust.
This can be seen in the case of Jones v Lock. This case
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held that because a cheque was not endorsed correctly in

the name of the child, it could not be valid and did not
create a valid trust. In this case it was said I think it
would be a very dangerous example if loose conversation
of this sort... should have the effect of the declaration of
a trust. The words used in creating a trust must always
be certain, for example there was difficulty in uncertain
words such as hope or desire and words such as these
are now taken to be too uncertain to create a trust, as
can be evidenced by Re Adams and the Kensington
Vestry- ("unto and to the absolute use of my dear wife ...
in full confidence that she will do what is right as to the
disposal thereof between my children" = a merely moral
obligation).
Don King Productions v. Warren (an example of how the
court may have to infer the intention to create a trust
even in complex commercial cases)

CERTAINTY OF SUBJECT MATTER

The second of the three certainties is the certainty of the
subject matter, almost anything at all can be the subject
matter of a trust just as long as the subject is recognized
accurately, and this can be seen in the case of Swift v
Dairywise Farms Ltd [14] in this case a milk quota was
recognised and was allowed to be the subject of a trust,
although it must be specifically stated what the subject of
the trust is.
If the certainty of the subject matter is missing then there
are two possible outcomes that can happen. The first
outcome is that the gift will go absolutely to the first
donee as seen in Sprange v Bernard [15] and this means
that the property is an absolute gift to the person who
should be a trustee, and it will not go to the person who it
was actually meant for. The second outcome that can
arise if the subject matter is missing, is that the gift will
fail and then it will revert back on a resulting trust to the
settlors estate. In the case of chattels if the specific
property is not identified then a trust will not be created,
and this is similar to the case of Palmer v Simmonds [16] .
It was in this case in which the word bulk was not allowed
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to represent the amount of property left, because the

word is too broad to define how much the bulk of an
estate is, there can also be problems identifying how the
property is divided between the beneficiaries Re Golays
Will Trusts [17] .

CERTAINTY OF OBJECT
The third of the three certainties is the certainty of
objects. This third certainty makes it clear that the trust
has to specify who the beneficiary actually is, this is said
by Lord Denning in Re Vandervells Trusts (No 2) [18] and
if the beneficiary is not clear then the trust would be void
for uncertainty of objects and the property that would
have gone on trust would go back to the donor.
Depending on the type of trust, there are different rules
for certainty of objects. If there is a fixed trust then the
share or the interest of the beneficiaries must be
specified clearly in the trust. The test used for certainty of
objects shows that you must be able to identify the
beneficiaries. It doesnt matter where they are, or even if
it is known where they are, they just need to be
identified.