The three certainties are today commonly referred as certainty of intention, certainty of subject matter and
certainty of objects, and they were first explored by Lord Langdale in Knight v Knight (1840) 3 Beav
148.
The three certainties are the essential elements of the express trust that must be defined with sufficient
certainty to enable the trustee or donee of the power, or by default the court, to carry out their duties.
Without such certainty, the trust instrument will be held to be void.
When presented with a problem question, establish from the outset that you will be testing the presented
facts against the three certainties. Also highlight to the examiner that the advice provided should be
considered preliminary in nature. This is because absence of access to the surrounding circumstances
hinders one’s ability to offer a definitive piece of advice as to whether a trust has been expressly created
via the three certainties.
,INTENTION
An intention to create a trust is fundamentally different from the broader concept of an intention to benefit
another simpliciter. The task for the court is to reach a decision on whether the disposition was intended
to be a gift, power or trust.
o An intention to create a trust is construed by the court paying attention to not only the settlor or
testator/s words, but also their conduct, and the surrounding context. To complicate matters
further, there are instances in which the court will analyse the actions of the settlor as disclosing
an intention to create an express trust even though she might not have understood that that was
what she was doing – equity’s rationale being that ‘‘equity looks to the substance rather than the
form’.
o An intention to transfer an absolute gift is not the same as an intention to create a trust. This is
because an outright gift concerns the transfer of legal ownership along with the beneficial
ownership to the benefitting party.
o An intention to create a power is generally seen in the absence of mandatory language being
imposed on the individual in receipt of the property. Per Re Gulbenkian’s Settlements [1970] AC
508, a power can be clearly indicated to be present if there are ‘in default of appointment’ clauses
since a trust’s dispositive provision are mandatory.
, LANGUAGE
Other than from where the trust is over land, specific words need not be conveyed to demonstrate an
intention to establish a express trust.
o Arden LJ in Singha v Heer [2016] EWCA Civ 424: it is not true that a trust will automatically have
been found from the use of the word “trust”. This is because the court will also need to look at the
‘true effect of the arrangement or document’ as other facts may demonstrate that the settlor did not
intend that the inclusion of the word itself was to deliver its technical legal meaning.
The court generally distinguishes between language that is ‘precatory’, and those that are ‘mandatory’.
o This is because, per Lambe v Eames (1871) 6 Ch App 597, language that is precatory on its own
indicates that it was the intention of the testator to confer a mere moral obligation on a donee, in
contrast to a mandatory obligation on a trustee.
FACTS
A testator, via his will, bequeathed the following: The house is to “be at her disposal in any
way she may think best for the benefit of herself and her family”.
Examples of precatory language from subsequent case law:
o Mussoorie Bank v Raynor (1882) 7 App Cas 321.A testator, via his will, bequeathed the
following: “I give to my…wife…the whole of my property…feeling confident that she will
act justly to our children in diving the same when no longer required by her.”
o Re Williams [1897] 2 Ch 12. A testator, via his will, bequeathed the residue of his estate,
assigning that it is “absolutely, in fullest trust and confidence that she will carry out my
wishes in the following particulars”. The particulars would include that the wife was to pay
premiums for her life insurance, and then leave that money under that policy, and also the
moneys payable under his life (which was his property), in her own will for their daughter.
o Re Snowden [1979] Ch 528. An elderly lady who could not decide how to leave her
property among her nephews and nieces left it all to her brother, telling him that he would
“know what to do”.
Examples of mandatory language from subsequent case law:
o McPhail v Doulton [1971] AC 424: A deed established a fund to provide for the benefit of
the employees and ex-employees of a company, and their relatives and dependants. The
deed stated that the “…trustees shall apply the net income of the fund in making at their
absolute discretion grants …[to the specified class]”.
certainty of objects, and they were first explored by Lord Langdale in Knight v Knight (1840) 3 Beav
148.
The three certainties are the essential elements of the express trust that must be defined with sufficient
certainty to enable the trustee or donee of the power, or by default the court, to carry out their duties.
Without such certainty, the trust instrument will be held to be void.
When presented with a problem question, establish from the outset that you will be testing the presented
facts against the three certainties. Also highlight to the examiner that the advice provided should be
considered preliminary in nature. This is because absence of access to the surrounding circumstances
hinders one’s ability to offer a definitive piece of advice as to whether a trust has been expressly created
via the three certainties.
,INTENTION
An intention to create a trust is fundamentally different from the broader concept of an intention to benefit
another simpliciter. The task for the court is to reach a decision on whether the disposition was intended
to be a gift, power or trust.
o An intention to create a trust is construed by the court paying attention to not only the settlor or
testator/s words, but also their conduct, and the surrounding context. To complicate matters
further, there are instances in which the court will analyse the actions of the settlor as disclosing
an intention to create an express trust even though she might not have understood that that was
what she was doing – equity’s rationale being that ‘‘equity looks to the substance rather than the
form’.
o An intention to transfer an absolute gift is not the same as an intention to create a trust. This is
because an outright gift concerns the transfer of legal ownership along with the beneficial
ownership to the benefitting party.
o An intention to create a power is generally seen in the absence of mandatory language being
imposed on the individual in receipt of the property. Per Re Gulbenkian’s Settlements [1970] AC
508, a power can be clearly indicated to be present if there are ‘in default of appointment’ clauses
since a trust’s dispositive provision are mandatory.
, LANGUAGE
Other than from where the trust is over land, specific words need not be conveyed to demonstrate an
intention to establish a express trust.
o Arden LJ in Singha v Heer [2016] EWCA Civ 424: it is not true that a trust will automatically have
been found from the use of the word “trust”. This is because the court will also need to look at the
‘true effect of the arrangement or document’ as other facts may demonstrate that the settlor did not
intend that the inclusion of the word itself was to deliver its technical legal meaning.
The court generally distinguishes between language that is ‘precatory’, and those that are ‘mandatory’.
o This is because, per Lambe v Eames (1871) 6 Ch App 597, language that is precatory on its own
indicates that it was the intention of the testator to confer a mere moral obligation on a donee, in
contrast to a mandatory obligation on a trustee.
FACTS
A testator, via his will, bequeathed the following: The house is to “be at her disposal in any
way she may think best for the benefit of herself and her family”.
Examples of precatory language from subsequent case law:
o Mussoorie Bank v Raynor (1882) 7 App Cas 321.A testator, via his will, bequeathed the
following: “I give to my…wife…the whole of my property…feeling confident that she will
act justly to our children in diving the same when no longer required by her.”
o Re Williams [1897] 2 Ch 12. A testator, via his will, bequeathed the residue of his estate,
assigning that it is “absolutely, in fullest trust and confidence that she will carry out my
wishes in the following particulars”. The particulars would include that the wife was to pay
premiums for her life insurance, and then leave that money under that policy, and also the
moneys payable under his life (which was his property), in her own will for their daughter.
o Re Snowden [1979] Ch 528. An elderly lady who could not decide how to leave her
property among her nephews and nieces left it all to her brother, telling him that he would
“know what to do”.
Examples of mandatory language from subsequent case law:
o McPhail v Doulton [1971] AC 424: A deed established a fund to provide for the benefit of
the employees and ex-employees of a company, and their relatives and dependants. The
deed stated that the “…trustees shall apply the net income of the fund in making at their
absolute discretion grants …[to the specified class]”.
