Certainty of Object Matter
Certainty of object matter is one of the substantive requirements that needs to be
satisfied for a valid express trust. Lord Langdale MR in Knight v Knight held that “…it is
important to comply because the party must know if any obligation has been imposed
and if he is aware of that, he must also know what property is to be distributed and the
named beneficiaries…” In essence, the recipient of property has to know what
obligations attached to it and to whom they are owed. Besides, court ought to have
sufficient guidance on settlors’ intention able to determine whether such obligation has
been exercised and, if otherwise, to enforce it.
This essay will focus on certainty of object matter. As for trustees able to identify
who are beneficiaries of a particular trust. Besides, courts will know in whose favour
they can decree performance of the trust and oversee the performance of trustee. Any
trust that uncertain as to its beneficiary will be void, unless for charitable purpose.
Therefore, it is apparent trust must be for ascertainable beneficiaries. The test to be
applied to determine certainty of objects relies upon the nature of the trust, namely, a
fixed trust, a discretionary trust or a power of appointment.
A fixed trust is one which the interests of the beneficiaries are specified in the
instrument. Hence, the beneficiaries are the owners of the equitable interest disposed to
them. An example would be a trust for “my siblings in equal shares”. Following that, a
fixed trust must, for its execution, have beneficiaries which are all identifiable so that a
complete list can be made of them. It must be possible to draw up a complete list of
beneficiaries as per IRC v Broadway Cottages Trust. This is sometimes called the
“complete list” test. Failing which the trust will fail for uncertainty of objects. Moreover,
the trustee must ensure all the beneficiaries listed match the description of the settlor
and must take all reasonable steps to guarantee nobody will fall outside the class.
In discretionary trust, the trustees hold the property on trust for such member or
members of a class of beneficiaries as they shall in their absolute discretion determine.
In this situation, no beneficiary owns any part of the trust property unless and until the
trustees have exercised their discretion in his favour. However, this kind of trust still
mandates trustees to distribute the property but only they have the discretion as to who
to give and how much each will receive. In order to do so, the trustee must at least
know who the potential beneficiaries are. The case of McPhail v Doulton laid down the
test for this kind of trust. It is worthwhile to note that before McPhail, there was no
distinction between a fixed trust and a discretionary trust and the trustees applied a
complete list test as well.
In McPhail, House of Lords(HOL) held applying the complete list test to
discretionary trust held prove to cause much difficulties. In fixed trust, there is a
tendency to involve only small number of subjects whereas in discretionary trust it could
involve many more objects. Moreover, trustees are not required to distribute equally to
all, so why is there a need to compile a complete list of all potential beneficiaries to
Certainty of object matter is one of the substantive requirements that needs to be
satisfied for a valid express trust. Lord Langdale MR in Knight v Knight held that “…it is
important to comply because the party must know if any obligation has been imposed
and if he is aware of that, he must also know what property is to be distributed and the
named beneficiaries…” In essence, the recipient of property has to know what
obligations attached to it and to whom they are owed. Besides, court ought to have
sufficient guidance on settlors’ intention able to determine whether such obligation has
been exercised and, if otherwise, to enforce it.
This essay will focus on certainty of object matter. As for trustees able to identify
who are beneficiaries of a particular trust. Besides, courts will know in whose favour
they can decree performance of the trust and oversee the performance of trustee. Any
trust that uncertain as to its beneficiary will be void, unless for charitable purpose.
Therefore, it is apparent trust must be for ascertainable beneficiaries. The test to be
applied to determine certainty of objects relies upon the nature of the trust, namely, a
fixed trust, a discretionary trust or a power of appointment.
A fixed trust is one which the interests of the beneficiaries are specified in the
instrument. Hence, the beneficiaries are the owners of the equitable interest disposed to
them. An example would be a trust for “my siblings in equal shares”. Following that, a
fixed trust must, for its execution, have beneficiaries which are all identifiable so that a
complete list can be made of them. It must be possible to draw up a complete list of
beneficiaries as per IRC v Broadway Cottages Trust. This is sometimes called the
“complete list” test. Failing which the trust will fail for uncertainty of objects. Moreover,
the trustee must ensure all the beneficiaries listed match the description of the settlor
and must take all reasonable steps to guarantee nobody will fall outside the class.
In discretionary trust, the trustees hold the property on trust for such member or
members of a class of beneficiaries as they shall in their absolute discretion determine.
In this situation, no beneficiary owns any part of the trust property unless and until the
trustees have exercised their discretion in his favour. However, this kind of trust still
mandates trustees to distribute the property but only they have the discretion as to who
to give and how much each will receive. In order to do so, the trustee must at least
know who the potential beneficiaries are. The case of McPhail v Doulton laid down the
test for this kind of trust. It is worthwhile to note that before McPhail, there was no
distinction between a fixed trust and a discretionary trust and the trustees applied a
complete list test as well.
In McPhail, House of Lords(HOL) held applying the complete list test to
discretionary trust held prove to cause much difficulties. In fixed trust, there is a
tendency to involve only small number of subjects whereas in discretionary trust it could
involve many more objects. Moreover, trustees are not required to distribute equally to
all, so why is there a need to compile a complete list of all potential beneficiaries to
