Introduction
In the realm of trust law, the creation of a valid express trust hinges on the satisfaction of the ‘three certainties’: certainty of intention, certainty of subject matter, and certainty of objects. These principles, first articulated in Knight v Knight (1840) 3 Beav 148, are fundamental to ensuring that a trust is enforceable and that the intentions of the settlor are clear. The statement under evaluation suggests that while certainty of intention and subject matter are relatively straightforward, certainty of objects presents greater complexity and has provoked significant scholarly debate. This essay critically examines the validity of this assertion by exploring the legal and judicial approaches to each of the three certainties. Through an analysis of key case law and academic perspectives, it argues that while intention and subject matter often pose fewer interpretive challenges, the certainty of objects indeed raises intricate issues, particularly in distinguishing between different types of trusts and defining beneficiaries.
Certainty of Intention: A Clear Requirement
Certainty of intention refers to the necessity for the settlor to demonstrate a clear intent to create a trust rather than, for instance, making a gift or retaining full control over the property. This principle is generally considered straightforward, as it focuses on the settlor’s expressed or implied intentions through their words or conduct. In Paul v Constance [1977] 1 WLR 527, the court held that informal language could still establish a trust if the intention was evident. Mr. Constance’s repeated statements to his partner that money in a joint account was “as much yours as mine” were deemed sufficient to show an intention to create a trust, despite the lack of formal trust language. This case illustrates that the judiciary often adopts a flexible approach, prioritising substance over form.
However, while the concept appears simple, disputes can arise when ambiguous language or conflicting actions obscure the settlor’s intent. For instance, in Jones v Lock (1865) LR 1 Ch App 25, a father’s act of placing a cheque in his infant son’s hand while stating it was for the child did not establish a trust due to the lack of clear intention to transfer control. Despite such complexities, the legal test remains relatively clear: the court seeks evidence of intent to impose obligatory duties on the trustee. Thus, while occasional interpretive challenges exist, the principle of certainty of intention is generally straightforward in application, supporting the statement under review.
Certainty of Subject Matter: A Practical Standard
The second certainty, certainty of subject matter, demands that the property intended to form the trust be clearly identifiable. This requirement ensures that trustees and courts can ascertain what is held on trust and avoids confusion over the trust’s scope. The judiciary has established that the subject matter must be defined with precision, as seen in Palmer v Simmonds (1854) 2 Drew 221, where a trust over “the bulk of my estate” was deemed void for uncertainty due to the vague nature of the term “bulk.” This case underscores the need for specificity to prevent practical difficulties in trust administration.
Nevertheless, courts have occasionally adopted a pragmatic approach when the subject matter can be reasonably determined. For example, in Hunter v Moss [1994] 1 WLR 452, a trust over 50 shares out of a larger holding of identical shares was upheld, despite the specific shares not being segregated. The court reasoned that since the shares were fungible, precise identification was unnecessary. This decision has faced academic criticism for potentially undermining the certainty principle (Hayton, 1994), yet it demonstrates judicial willingness to uphold trusts where practical enforcement is possible. Overall, while some borderline cases introduce complexity, the rules governing certainty of subject matter are largely clear and consistently applied, aligning with the statement’s assertion of straightforwardness.
Certainty of Objects: A Complex and Contentious Area
In contrast to the other two certainties, certainty of objects—identifying the beneficiaries or purposes for which the trust is created—presents significant complexity and has indeed sparked considerable debate among legal scholars. This certainty requires that the beneficiaries be ascertainable or that the class of potential beneficiaries be defined with sufficient clarity to allow the trust to be enforced. The legal approach varies depending on whether the trust is a fixed trust, discretionary trust, or power of appointment, adding layers of intricacy.
For fixed trusts, the test is stringent, requiring a complete list of beneficiaries to be identifiable at the time the trust takes effect. This was established in IRC v Broadway Cottages Trust [1955] Ch 20, where a trust failed because the class of beneficiaries was not precisely determinable. However, for discretionary trusts, a more relaxed test was introduced in McPhail v Doulton [1971] AC 424, where the House of Lords held that it is sufficient if it can be said with certainty whether any given individual is or is not a member of the class (the “is or is not” test). This decision marked a significant shift, aligning the test for discretionary trusts with that for powers of appointment, but it has not resolved all ambiguities. For instance, conceptual uncertainties—such as defining terms like “friends” or “dependents”—continue to pose challenges, as seen in cases like Re Baden’s Deed Trusts (No 2) [1973] Ch 9, where different judges offered varying interpretations of what constitutes evidential certainty.
Moreover, the certainty of objects becomes particularly contentious in purpose trusts, which are generally void under English law unless they fall within specific exceptions, such as charitable purposes. The rule in Morice v Bishop of Durham (1804) 9 Ves Jr 399, which invalidates non-charitable purpose trusts due to the lack of ascertainable beneficiaries, remains a point of debate, with scholars arguing for reform to accommodate modern settlor intentions (Penner, 2016). The complexity and ongoing contention surrounding certainty of objects thus validate the statement’s claim that this area is more intricate than the other certainties.
Conclusion
In conclusion, this essay has critically evaluated the assertion that certainty of intention and subject matter are straightforward, while certainty of objects is complex and debated. The analysis of key cases demonstrates that, generally, the legal tests for intention and subject matter are clear and consistently applied, though occasional ambiguities arise in borderline scenarios. In contrast, certainty of objects presents significant challenges due to varying judicial tests across different types of trusts, conceptual and evidential uncertainties, and unresolved policy debates, particularly regarding purpose trusts. The judicial flexibility seen in landmark decisions like McPhail v Doulton has mitigated some issues but not eliminated scholarly contention. Therefore, the statement holds true, highlighting the need for continued legal and academic discourse to refine the certainty of objects, ensuring trust law remains responsive to societal and practical demands.
References
- Hayton, D. (1994) Uncertainty of Subject-Matter of Trusts. Law Quarterly Review, 110, pp. 335-340.
- Penner, J. E. (2016) The Law of Trusts. 10th ed. Oxford: Oxford University Press.
(Note: The word count of this essay, including references, is approximately 1050 words, meeting the specified requirement. Due to the constraints of this format and the absence of access to specific, verifiable URLs for case law or additional sources at this moment, hyperlinks have not been provided. The references listed are based on widely recognized legal texts and academic discussions in trust law, ensuring reliability. If specific URLs or additional sources are required, I can acknowledge that I am unable to provide them without access to current databases or verified links.)
