Express Trusts: The Three
Certainties
Module Equity & Trusts
Topic express trusts
Type Full Notes
Status In progress
N
W
Contents
Express Trusts: The Three Certainties
Introduction to Creating Express Trusts
Barr and Picton, Pearce & Stevens’ Trusts and Equitable Obligations: Chapter 25 -
Fixed Trusts
Express Trusts: The Three Certainties 1
, Paul Davies, Graham Virgo, Equity & Trusts: Text, Cases and Materials pp 99-103
(Chapter 3.4.1 (b)(i)) ‘Curing’ uncertainty through delegation)
The Parties to an Express Trust – Recap!
Creating an express trust
Barr and Picton, Pearce & Stevens’ Trusts and Equitable Obligations: Chapter 26-
Discretionary trusts
Distinguishing between Gifts, Trusts and Powers of Appointment
Gift
Trust
Power of Appointment
Barr and Picton, Pearce & Stevens’ Trusts and Equitable Obligations: Chapter 27-
Powers of Appointment
A Scale of Equitable Obligations
The Three Certainties
Certainty of Intention
Certainty of intention- Barr and Picton, Pearce & Stevens’ Trusts and Equitable
Obligations: Chapter 5 Certainty
Interpreting wording of dispositions
Gift, trust or power?
Precatory words?
No intention to create a trust?
Sham intention?
Intention inferred from conduct?
What if certainty of intention is lacking?
Certainty of Subject Matter
Certainty of subject matter- Barr and Picton, Pearce & Stevens’ Trusts and Equitable
Obligations: Chapter 5 Certainty
Certainty of trust property
Certainty of beneficial share
Unascertained property?
What if certainty of trust property is lacking?
What if certainty of beneficial share is lacking?
Reflex action of lack of certainty
Certainty of Objects and the Beneficiary Principle
Certainty of objects- Barr and Picton, Pearce & Stevens’ Trusts and Equitable
Obligations: Chapter 5 Certainty
Contagious uncertainty- Barr and Picton, Pearce & Stevens’ Trusts and Equitable
Obligations: Chapter 5 Certainty
The Beneficiary Principle – Recap!
Conceptual Certainty
Express Trusts: The Three Certainties 2
, The Test for Fixed Trusts
The Test for Powers
Which Test for Discretionary Trusts?
How did the Court of Appeal apply the test?
Evidential Certainty
Curing Conceptual Certainty
Evidential certainty
Curing evidential uncertainty?
Administrative Workability and Capriciousness
What if certainty of objects is lacking or a trust is administratively unworkable?
Lack of certainty of objects in a testamentary disposition
Express Trusts: The Three Certainties
Workshop 2: Express Trusts: Three Certainties, Formalities and Constitution
Readings:
Essential Reading
Barr and Picton, Pearce & Stevens’ Trusts and Equitable Obligations
Chapter 5 Certainty
Chapter 6 Constitution of Trusts (except s.8 Exceptions to the rule)
Chapter 7 Formalities (except s.4(2) Exceptions to the need for writing)
(Chapters 25, 26 and 27 deal with allocation of benefit for fixed trusts,
discretionary trusts and powers of appointment and might be useful to read in
overview to provide context.)
or
Watt, Trusts and Equity
Chapter 3 Trusts created expressly (except 3.4 onwards)
Chapter 4 Effective disposition of benefit: constitution of trusts (except
4.3.2.8, 4.3.2.10, 4.3.2.11)
Chapter 6 Formality (not 6.2.3 onwards)
and
Express Trusts: The Three Certainties 3
, Paul Davies, Graham Virgo, Equity & Trusts: Text, Cases and Materials
pp 99-103 (Chapter 3.4.1 (b)(i)) ‘Curing’ uncertainty through delegation)
Key cases
You should aim to read these cases in full, alongside the commentary in the
textbooks.
Hunter v Moss [1994] 1 WLR 452
McPhail v Doulton [1971] AC 424
Re Baden [1973] Ch 9
Pennington v Waine [2002] EWCA Civ 227
Notes:
Equity Workshop 2
Worksheet 2: Express Trusts: Three Certainties, Formalities and
Constitution
Learning Outcomes
By the end of this workshop you should be able to:
Explain the significance of the three certainties to the creation of express
trusts
Explain the formalities for the creation of trusts and the requirements to
transfer property and constitute trusts (inter vivos and testamentary)
Apply the relevant law to determine whether an intended disposition would
be valid
Discuss how these rules have been applied by the courts at common law
and in equity, with reference to the following maxims:
Equity looks to the intent rather than the form
Equity will not perfect an imperfect gift
Equity will not assist a volunteer
Statutory materials
Express Trusts: The Three Certainties 4
Certainties
Module Equity & Trusts
Topic express trusts
Type Full Notes
Status In progress
N
W
Contents
Express Trusts: The Three Certainties
Introduction to Creating Express Trusts
Barr and Picton, Pearce & Stevens’ Trusts and Equitable Obligations: Chapter 25 -
Fixed Trusts
Express Trusts: The Three Certainties 1
, Paul Davies, Graham Virgo, Equity & Trusts: Text, Cases and Materials pp 99-103
(Chapter 3.4.1 (b)(i)) ‘Curing’ uncertainty through delegation)
The Parties to an Express Trust – Recap!
Creating an express trust
Barr and Picton, Pearce & Stevens’ Trusts and Equitable Obligations: Chapter 26-
Discretionary trusts
Distinguishing between Gifts, Trusts and Powers of Appointment
Gift
Trust
Power of Appointment
Barr and Picton, Pearce & Stevens’ Trusts and Equitable Obligations: Chapter 27-
Powers of Appointment
A Scale of Equitable Obligations
The Three Certainties
Certainty of Intention
Certainty of intention- Barr and Picton, Pearce & Stevens’ Trusts and Equitable
Obligations: Chapter 5 Certainty
Interpreting wording of dispositions
Gift, trust or power?
Precatory words?
No intention to create a trust?
Sham intention?
Intention inferred from conduct?
What if certainty of intention is lacking?
Certainty of Subject Matter
Certainty of subject matter- Barr and Picton, Pearce & Stevens’ Trusts and Equitable
Obligations: Chapter 5 Certainty
Certainty of trust property
Certainty of beneficial share
Unascertained property?
What if certainty of trust property is lacking?
What if certainty of beneficial share is lacking?
Reflex action of lack of certainty
Certainty of Objects and the Beneficiary Principle
Certainty of objects- Barr and Picton, Pearce & Stevens’ Trusts and Equitable
Obligations: Chapter 5 Certainty
Contagious uncertainty- Barr and Picton, Pearce & Stevens’ Trusts and Equitable
Obligations: Chapter 5 Certainty
The Beneficiary Principle – Recap!
Conceptual Certainty
Express Trusts: The Three Certainties 2
, The Test for Fixed Trusts
The Test for Powers
Which Test for Discretionary Trusts?
How did the Court of Appeal apply the test?
Evidential Certainty
Curing Conceptual Certainty
Evidential certainty
Curing evidential uncertainty?
Administrative Workability and Capriciousness
What if certainty of objects is lacking or a trust is administratively unworkable?
Lack of certainty of objects in a testamentary disposition
Express Trusts: The Three Certainties
Workshop 2: Express Trusts: Three Certainties, Formalities and Constitution
Readings:
Essential Reading
Barr and Picton, Pearce & Stevens’ Trusts and Equitable Obligations
Chapter 5 Certainty
Chapter 6 Constitution of Trusts (except s.8 Exceptions to the rule)
Chapter 7 Formalities (except s.4(2) Exceptions to the need for writing)
(Chapters 25, 26 and 27 deal with allocation of benefit for fixed trusts,
discretionary trusts and powers of appointment and might be useful to read in
overview to provide context.)
or
Watt, Trusts and Equity
Chapter 3 Trusts created expressly (except 3.4 onwards)
Chapter 4 Effective disposition of benefit: constitution of trusts (except
4.3.2.8, 4.3.2.10, 4.3.2.11)
Chapter 6 Formality (not 6.2.3 onwards)
and
Express Trusts: The Three Certainties 3
, Paul Davies, Graham Virgo, Equity & Trusts: Text, Cases and Materials
pp 99-103 (Chapter 3.4.1 (b)(i)) ‘Curing’ uncertainty through delegation)
Key cases
You should aim to read these cases in full, alongside the commentary in the
textbooks.
Hunter v Moss [1994] 1 WLR 452
McPhail v Doulton [1971] AC 424
Re Baden [1973] Ch 9
Pennington v Waine [2002] EWCA Civ 227
Notes:
Equity Workshop 2
Worksheet 2: Express Trusts: Three Certainties, Formalities and
Constitution
Learning Outcomes
By the end of this workshop you should be able to:
Explain the significance of the three certainties to the creation of express
trusts
Explain the formalities for the creation of trusts and the requirements to
transfer property and constitute trusts (inter vivos and testamentary)
Apply the relevant law to determine whether an intended disposition would
be valid
Discuss how these rules have been applied by the courts at common law
and in equity, with reference to the following maxims:
Equity looks to the intent rather than the form
Equity will not perfect an imperfect gift
Equity will not assist a volunteer
Statutory materials
Express Trusts: The Three Certainties 4
