Introduction
The concept of the ‘three certainties’ is fundamental to the creation of a valid express trust in English law, as established in the seminal case of Knight v Knight (1840). These certainties—intention, subject matter, and object—ensure that trusts are clearly defined and enforceable. The statement under discussion suggests that while certainty of intention and subject matter are relatively straightforward, certainty of object is notably more complex and contentious among legal scholars. This essay critically evaluates the validity of this assertion by examining the legal and judicial approaches to each of the three certainties. By analysing key case law, including Knight v Knight, McPhail v Doulton, and others, it will argue that while intention and subject matter often present clear principles, certainty of object indeed raises intricate issues, particularly in discretionary trusts, thus validating the statement to a significant extent. The discussion will also highlight judicial efforts to balance clarity with practicality in trust law.
Certainty of Intention: A Relatively Clear Principle
Certainty of intention refers to the requirement that a settlor must manifest a clear intention to create a trust, distinguishing it from other legal arrangements such as gifts or mere moral obligations. This principle, though fundamentally straightforward, is not without its nuances. The courts typically assess intention objectively, focusing on the settlor’s words and conduct rather than subjective motives. In Paul v Constance (1977), for instance, the Court of Appeal held that despite informal language, Mr. Constance’s repeated statements to Ms. Paul about money being “as much yours as mine” demonstrated an intention to create a trust over a joint bank account. This case illustrates that the courts adopt a pragmatic approach, prioritising the substance of intent over strict formalities.
However, challenges can arise when distinguishing between precatory words (expressions of hope or desire) and binding trust obligations. In Re Adams and Kensington Vestry (1884), the testator’s use of words “in full confidence” was deemed insufficient to establish a trust, as it lacked imperative language. This indicates that while the principle of certainty of intention is clear—requiring evidence of a binding obligation—judicial interpretation may vary based on context. Overall, the legal approach to intention remains relatively accessible, supporting the statement that it is straightforward compared to other certainties.
Certainty of Subject Matter: Clarity with Occasional Complexity
Certainty of subject matter demands that the property to be held on trust must be clearly identified or identifiable at the time the trust is created. This rule appears straightforward in theory, as it ensures trustees and beneficiaries know precisely what is held under trust. In Palmer v Simmonds (1854), the court invalidated a trust due to vague language about “the bulk of my estate,” as it failed to specify the exact proportion of the property. This case underscores the judiciary’s insistence on precision, a principle that generally simplifies disputes over property identification.
Nevertheless, complexities emerge in certain contexts, such as trusts over intangible or fluctuating assets. In Hunter v Moss (1994), the Court of Appeal upheld a trust over 50 shares out of a larger holding of identical shares, despite the specific shares not being segregated. This decision, while pragmatic, has been criticised for departing from traditional requirements of certainty, as it arguably undermines the need for identifiable subject matter (Hudson, 2016). Despite such exceptions, the general legal approach to subject matter remains clear: the property must be ascertainable, even if judicial discretion occasionally introduces flexibility. Thus, the assertion of straightforwardness holds in most instances.
Certainty of Object: A Complex and Debated Principle
Certainty of object requires that the beneficiaries of a trust must be clearly defined or ascertainable. This principle is widely regarded as the most complex of the three certainties, particularly in discretionary trusts, where trustees have the power to select beneficiaries from a class. Historically, the “list certainty” test required a complete list of all potential beneficiaries to be made, as seen in IRC v Broadway Cottages (1955). This rigid approach often rendered large discretionary trusts invalid due to practical difficulties in listing all possible beneficiaries.
The landmark decision in McPhail v Doulton (1971) marked a significant shift by introducing the “is or is not” test, which only requires that it be possible to determine whether any given individual falls within the class of beneficiaries. Lord Wilberforce’s reasoning aimed to align discretionary trusts with powers of appointment, prioritising flexibility over strict certainty. While this development was pragmatic, it sparked considerable debate among scholars. Critics argue that the test introduces uncertainty by relying on conceptual clarity rather than empirical evidence, potentially leading to disputes over class definitions (Pearce & Stevens, 2018). For instance, in Re Baden’s Deed Trusts (No. 2) (1973), the courts struggled to apply the new test to terms like “dependants,” highlighting lingering ambiguities.
Furthermore, the distinction between fixed and discretionary trusts adds layers of complexity. In fixed trusts, certainty of object remains stricter, requiring a clear list of beneficiaries, whereas discretionary trusts benefit from the relaxed test. This dichotomy has fuelled academic discussion on whether the law prioritises practicality over consistency. Arguably, the evolution of certainty of object reflects judicial efforts to balance the settlor’s intentions with administrative feasibility, yet it undeniably remains a contentious and intricate area of trust law, validating the statement under review.
Conclusion
In conclusion, this essay has critically evaluated the legal and judicial approaches to the three certainties of trust law—intention, subject matter, and object—to assess the validity of the statement that the first two are straightforward while the latter is complex. The analysis reveals that certainty of intention, exemplified by cases like Paul v Constance, is generally clear, focusing on objective evidence of binding intent, though occasional challenges with precatory language exist. Similarly, certainty of subject matter, as seen in Palmer v Simmonds, is largely straightforward, demanding identifiable property, despite pragmatic exceptions like Hunter v Moss. In contrast, certainty of object emerges as significantly more intricate, particularly in discretionary trusts, with evolving tests from IRC v Broadway Cottages to McPhail v Doulton sparking ongoing scholarly debate over clarity and consistency. Therefore, the statement holds substantial validity, as certainty of object indeed presents unique complexities. The implications of this disparity suggest a need for continued judicial and academic scrutiny to ensure trust law remains both practical and predictable for settlors and beneficiaries alike.
References
- Hudson, A. (2016) Equity and Trusts. 9th edn. Routledge.
- Pearce, R. and Stevens, J. (2018) The Law of Trusts and Equitable Obligations. 7th edn. Oxford University Press.
Note: Case law references such as Knight v Knight (1840), Paul v Constance (1977), Re Adams and Kensington Vestry (1884), Palmer v Simmonds (1854), Hunter v Moss (1994), IRC v Broadway Cottages (1955), McPhail v Doulton (1971), and Re Baden’s Deed Trusts (No. 2) (1973) are based on widely recognised legal precedents in English trust law. Specific citations or full case reports have not been hyperlinked due to the absence of verified, direct URLs to the exact sources at the time of writing. For primary source access, readers are advised to consult legal databases such as Westlaw or LexisNexis.
