Lecture 3&4: the express trust and the three certainties
For a valid express private trust, the three certainties of intention, subject matter and
objects must be statisfied.
Case Wright v Atkyns (1823):
Knight v Knight 1840
1. Certainty of intention:
The determination of the intent of the settlor, whether the intention was to establish a trust, gift
or neither.
There must be an existence of an intention to create a binding trust obligation;
However, the mere intention to benefit another person is insufficient
There must be a specific intention to benefit by way of trust
It must be certain that the settlor intended to create a trust and subject the trust property to trust
obligations.
Be aware that the certainty of intention is not as straightforward as it seems,
There is usually assumed where trusts are created by writing and based on legal advice- it
is unlikely to be any uncertainty in relation to the intended obligation
However, this runs against the principle ‘equity looks to intent rather than the for’
No particular words is required for the creation of trusts
‘A trust can be created by the most untechnical of words’ or
Trust can be inferred from conduct
A simple statement of principle concerning certainty of intention can be formulated—but
there are practical difficulties
Courts examine the language and the extrinsic evidence to identify the relevant intention
The court is said to exercise its “judicial knowledge and experience…inmate common
sense and desire to make sense of expressed intention” Re Guilbenkian’s Settlement
“equity does not allow a trust to fail or want of a trustee”; if the intended trustee decides not to
accept the trust property and act as a trustee, the trust will still subsist, and the beneficiaries will
have beneficial interests, but the settlor or his personal representative will be trustee until new
trustees are appointed.
, Precatory words
Typically, this problem arises when the testator uses “loose language” expressing
“confidence”, “wish”, “belief”, “hope” or “request” that a legatee will use a gift in a
particular way.
The approach in earlier cases suggest that the courts are ready to hold these precatory words
to impose a trust obligation.
However, the modern judicial approach to have regard to the language of the will as a
whole to ascertain the testator’s intention
Eg case: Re Adams and Kensington Vestry
Facts:
- The testator gave all his property to his wife “in full confidence that she will do
what is right as to the disposal thereof between my children, either in her lifetime
or by will after her decease”
Held:
- The wife held the property absolutely
Reasoning:
- Construed the language of the will as a whole
- Held that the testator meant to say in giving her the property, he is calling to the
moral obligation which the wife is going to discharge
- It does NOT entail upon her any trust so as to bind her
Eg case: Re Snowden
Facts:
- Daughter of a rich man – inherited a lot of money but never married
- When her father died, her brother took care of everything practical
- A solicitor was called to home and wants to ensure who she wants to give her
things to in a will
- But Snowden could not make up her mind – and finally said to write down “I give
to Burt, my big brother, he would know what to do”
- Q: did these words impose a trust obligation on Burt?
Held:
- No trust obligation had been imposed on Burt – so he is free to take the property
absolutely
Reasoning:
- In order to give on trust, one must show the specific intention “that the full weight
of the law must bind the T”
- However, the relationship between the brother and sister was so loving that she
must not have intended it to be binding
- Instead, she is asking him to stand in her shoes as if she was stll alive
- Hence, the brother was covered by a moral and NOT a legal obligation
For a valid express private trust, the three certainties of intention, subject matter and
objects must be statisfied.
Case Wright v Atkyns (1823):
Knight v Knight 1840
1. Certainty of intention:
The determination of the intent of the settlor, whether the intention was to establish a trust, gift
or neither.
There must be an existence of an intention to create a binding trust obligation;
However, the mere intention to benefit another person is insufficient
There must be a specific intention to benefit by way of trust
It must be certain that the settlor intended to create a trust and subject the trust property to trust
obligations.
Be aware that the certainty of intention is not as straightforward as it seems,
There is usually assumed where trusts are created by writing and based on legal advice- it
is unlikely to be any uncertainty in relation to the intended obligation
However, this runs against the principle ‘equity looks to intent rather than the for’
No particular words is required for the creation of trusts
‘A trust can be created by the most untechnical of words’ or
Trust can be inferred from conduct
A simple statement of principle concerning certainty of intention can be formulated—but
there are practical difficulties
Courts examine the language and the extrinsic evidence to identify the relevant intention
The court is said to exercise its “judicial knowledge and experience…inmate common
sense and desire to make sense of expressed intention” Re Guilbenkian’s Settlement
“equity does not allow a trust to fail or want of a trustee”; if the intended trustee decides not to
accept the trust property and act as a trustee, the trust will still subsist, and the beneficiaries will
have beneficial interests, but the settlor or his personal representative will be trustee until new
trustees are appointed.
, Precatory words
Typically, this problem arises when the testator uses “loose language” expressing
“confidence”, “wish”, “belief”, “hope” or “request” that a legatee will use a gift in a
particular way.
The approach in earlier cases suggest that the courts are ready to hold these precatory words
to impose a trust obligation.
However, the modern judicial approach to have regard to the language of the will as a
whole to ascertain the testator’s intention
Eg case: Re Adams and Kensington Vestry
Facts:
- The testator gave all his property to his wife “in full confidence that she will do
what is right as to the disposal thereof between my children, either in her lifetime
or by will after her decease”
Held:
- The wife held the property absolutely
Reasoning:
- Construed the language of the will as a whole
- Held that the testator meant to say in giving her the property, he is calling to the
moral obligation which the wife is going to discharge
- It does NOT entail upon her any trust so as to bind her
Eg case: Re Snowden
Facts:
- Daughter of a rich man – inherited a lot of money but never married
- When her father died, her brother took care of everything practical
- A solicitor was called to home and wants to ensure who she wants to give her
things to in a will
- But Snowden could not make up her mind – and finally said to write down “I give
to Burt, my big brother, he would know what to do”
- Q: did these words impose a trust obligation on Burt?
Held:
- No trust obligation had been imposed on Burt – so he is free to take the property
absolutely
Reasoning:
- In order to give on trust, one must show the specific intention “that the full weight
of the law must bind the T”
- However, the relationship between the brother and sister was so loving that she
must not have intended it to be binding
- Instead, she is asking him to stand in her shoes as if she was stll alive
- Hence, the brother was covered by a moral and NOT a legal obligation
