Creation of express trusts
The three certaintiess
• According to Knight v Knight (1840) 3 Beav 148, for an express trust to be valid and
enforceable, it must comply with the three certaintes reeuirement:
1. The setlor must be shown to have really intended to create a trust (certainty of
intenton);
2. The property consttutng the subject mater of the trust must be clearly identiable
(certainty of subject mater); and
3. The beneiciaries of the trust must be clearly deined and sufciently identiable
(certainty of objects).
Certainty of intentions
1. The intenton must be to impose a duty on the trustee as
distnguished from a moral obligaton.
• Lambe v. Eames (1871) L.R. 6 Ch. 597 ("to be at her disposal in any way she may
think best, for the beneft of herself and her family" = merely moral obligaton, no
actual impostton of trust obligaton = not a trust.
• Re Adams and the Kensington Vestry (1884) 27 Ch. D. 394 ("unto and to the absolute
use of my dear wife ... in full confdence that she will do what is right as to the
disposal thereof between my children" = a merely moral obligaton, not a trust).
• Cf. Comiskey v. Bowring-Hanbury [1905] A.C. 84 (HL) ("in full confdence that... she
will devise it to one or more of my nieces as she may think ft..." = a trust but a
discretonary trust).
• Re Hamilton [1895] 2 Ch 370 (“take the will you have to construe and see what it
means, and if you come to the conclusion that no trust was intended you say so”, per
Lindley LJ)
2. An intenton to create a trust can be inferred from the circumstances.
• Paul v Constance [1977] 1 W.L.R. 527- lotery, paid money into ban account, bf said
to gf the money is as much yours as it is mine- he died soon afer, ct held that by that
statement he was creatng a trust.
• Re Kayford [1975] 1 WLR 279 – he was a dipshit and at ris of becoming ban rupt,
eventually the company went bust, the customers claimed the assets and as they’d
separated everything e.g. ban accounts – it was held on trust for customers
(inferred)
• Re Farepak Food and Gifs Ltd [2006] All ER (D) 265 (Dec) – started collectng money
monthly- for Christmas. Subscripton for low income families- then at Christmas the
money would be paid bac through gifs and vouchers – Company went bust £1b the
people came up and said the money belonged to them, the ct said, how do we ind
the intenton- trust fell and no intenton.
3. No intenton to create a trust can be read into a failed gif.
• Jones v Lock (1865) 1 Ch App 25 – Husband came bac from business trip, wife as ed
what he’d bought for the baby, and he gave the baby a cheeue that was in the
husbands name- went to sleep and died – gif failed to the baby so couldn’t be
claimed. A cheeue made out to one person, it’s not a gif, it would’ve had to been in
the baby’s name.
• Richards v Delbridge (1874) LR 18 Ee 11
The three certaintiess
• According to Knight v Knight (1840) 3 Beav 148, for an express trust to be valid and
enforceable, it must comply with the three certaintes reeuirement:
1. The setlor must be shown to have really intended to create a trust (certainty of
intenton);
2. The property consttutng the subject mater of the trust must be clearly identiable
(certainty of subject mater); and
3. The beneiciaries of the trust must be clearly deined and sufciently identiable
(certainty of objects).
Certainty of intentions
1. The intenton must be to impose a duty on the trustee as
distnguished from a moral obligaton.
• Lambe v. Eames (1871) L.R. 6 Ch. 597 ("to be at her disposal in any way she may
think best, for the beneft of herself and her family" = merely moral obligaton, no
actual impostton of trust obligaton = not a trust.
• Re Adams and the Kensington Vestry (1884) 27 Ch. D. 394 ("unto and to the absolute
use of my dear wife ... in full confdence that she will do what is right as to the
disposal thereof between my children" = a merely moral obligaton, not a trust).
• Cf. Comiskey v. Bowring-Hanbury [1905] A.C. 84 (HL) ("in full confdence that... she
will devise it to one or more of my nieces as she may think ft..." = a trust but a
discretonary trust).
• Re Hamilton [1895] 2 Ch 370 (“take the will you have to construe and see what it
means, and if you come to the conclusion that no trust was intended you say so”, per
Lindley LJ)
2. An intenton to create a trust can be inferred from the circumstances.
• Paul v Constance [1977] 1 W.L.R. 527- lotery, paid money into ban account, bf said
to gf the money is as much yours as it is mine- he died soon afer, ct held that by that
statement he was creatng a trust.
• Re Kayford [1975] 1 WLR 279 – he was a dipshit and at ris of becoming ban rupt,
eventually the company went bust, the customers claimed the assets and as they’d
separated everything e.g. ban accounts – it was held on trust for customers
(inferred)
• Re Farepak Food and Gifs Ltd [2006] All ER (D) 265 (Dec) – started collectng money
monthly- for Christmas. Subscripton for low income families- then at Christmas the
money would be paid bac through gifs and vouchers – Company went bust £1b the
people came up and said the money belonged to them, the ct said, how do we ind
the intenton- trust fell and no intenton.
3. No intenton to create a trust can be read into a failed gif.
• Jones v Lock (1865) 1 Ch App 25 – Husband came bac from business trip, wife as ed
what he’d bought for the baby, and he gave the baby a cheeue that was in the
husbands name- went to sleep and died – gif failed to the baby so couldn’t be
claimed. A cheeue made out to one person, it’s not a gif, it would’ve had to been in
the baby’s name.
• Richards v Delbridge (1874) LR 18 Ee 11
