There are the so-called the three certainties of a trust. In the case of Knight v Knight (1840) Vol 49 ER 58. In that case Lord Langdale set 3 certainties that are required for creation of a trust:
1. the words used must be so phrased that taken as a whole they may be deemed to be imperative.
2. the subject matter of the trust must be certain
3. the persons or objects intended to be benefited must also be certain.
Certainty of words or intention
Equity applies the maxim that equity looks to the intent rather than to the form and therefore no particular form is necessary for the creation of a trust but the intent must be manifest from the document or the circumstances. Therefore even precatory words can rise to a trust if it can be shown from the construction of the document that a trust was intended. It is all a matter of construction for the court looking at the entire document to ascertain whether a trust was intended or not. In the case of
Re Hamilton (1895) 2 Ch 370, 373. It was said of a will: “You must take the will which you have to construe and see what it means and if you come to the conclusion that no trust was intended you say so although previous judges have said the contrary on some wills more or less similar to the one you have to construe.”
What is meant by certainty of words is certainty of intention to create a trust appearing from the words in the document. In the case of Re Diggles (Gregory v. Edmonson (1888) 39 Ch.D 253 a testatrix Maryanne Diggles had made a will dated 4th August 1868 in the following terms “I give device and bequeath all my real and personal property and effects unto my daughter Frances Edmonson her heirs and assigns and it is my desire that she allows to my relatives and companion Anne Gregory now residing with me an annuity of 25 sterling pounds during her life and that the said Anne Gregory shall if she desire it have the use of such portions of my household furniture linen etcetera as may not be required by my daughter Frances Edmonson…” Under this will the daughter and her husband Alfred had been appointed as executrix and executor of the will. They continued paying annuity to Anne for a number of years and then stopped. She filed a suit for payment of arrears and a decision that they held the Estate subject to a trust in her favour. The question was whether under these words there was any trust created in favour of Anne Gregory and the Court of Appeal held that no trust or obligation to pay the annuity was imposed upon the daughter but that there was only a request to the daughter not binding on her in law to make that provision for Anne Gregory.
No trust was created either in Lambe V. Eames (1871) E.R. Ch. App 57 using the words “have confidence” and in Re Williams (1897) 2 Ch. 12 by the use of the words “fullest, trust and confidence” and neither was such trust created in Re Connoly (1910) 1 Ch. D 219 by the words “specially desire”
On the other hand in the case of Comiskey V. Bowring –Hanbury (1905) A.C. 84 The testator gave all his property to his wife “absolutely in full confidence that she will make such use of it as I would have made myself and that at her death she will device it to such one or more of my nieces as she may think fit.” The House of Lords held that on a true construction of the whole will the words in full confidence created a trust.
Certainity of Subject Matter
There are two limbs to this rule that the subject matter be certain:
1. The trust property or trust fund must be certain, it is uncertain to say for example “the bulk of my residuary estate”
2. The actual interest that the beneficiaries are to have must also be certain.
The maxims of equity will in certain cases come in to remedy the defects. Equity is equality, equality is equity. Equity tries to save a trust by finding a way to cure the uncertainty so where the maxim is applicable equity will apply equality is equity to divide in equal proportions. Note that there is no uncertainty if the testator does not specify the exact interest but confers upon the trustees a discretionary power to apply the trust fund or to pay it among a class of persons as they think fit. The discretionary power provides the absolute certainty.
Even if part of the trust is uncertain a certain part is still good and in certain circumstances if the uncertain part fails the entire interest will go to the persons entitled to the certain part of Curtis V. Rippon (1820) 5 Madd. 434 where the testator had left all his property to his wife “trusting that she would in fear of God and in love of the children committed to her care make such use of it as should be for her own and their spiritual and temporal good remembering always according to the circumstances the church of God and the poor”. The court held that the beneficial interest was to be taken by unascertained beneficiary subject to the rights of others to unascertained portions of it and the rights of these others therefore failed due to uncertainty and the ascertained beneficiary took the entire interest.
In Re Kolb’s Wills Trusts (1962) Ch. 531 what was in issue in this case was the construction of an investment clause in a will where the testator had referred to among other things investments in Blue-Chip Securities. The term blue-chip securities is often used to denote shares in large public companies thought to be entirely safe but is not a term of art and it lacks precision. The judge held that the term depended essentially on the standard applied by the testator and should not be regarded as an objective quality of the investment. If the testator had made his trustees the judges of the standard to be applied, all would have been well but as he had not that part of the clause in which the term was contained was void for uncertainty.
Contrast this decision with the decision in Re Golay’s Wills trust (1965) 1 WLR 969
Certainty of objects
The question: who has locus standi or who stands to benefit. The test of certainty here is that the objects be certain or be capable of being rendered certain. This test was restrictively interpreted in the case of I.R.C v Broadway Cottages Trust, to require that the trustees should at any time be able to make a full list of the beneficiaries an (1955) Ch 678 if the class was uncertainable at any time the trust will fail for uncertainty.
with regard to trust powers in favour of a discretionary class of objects. This test was later discarded by the House of Lords. In the case of McPhail v Doulton (1971) AC 424 and a new test identical to that used in Powers was formulated which is whether it can be said of any given person that he or she is or is not a member of the class. There has been arguments that this new test should also apply to fixed trusts and not only to discretionary trusts but the issue has not finally be determined.
There is an important exception to the rule that the objects be certain and this is the charitable trust where provided that a paramount general intention of charity is manifested certainty is charitable trusts is not essential to the validity of the trust.
The effect of uncertainty is as follows:
1. with respect to certainty of word or intention if an intention to create a trust cannot be derived the words used in the instrument the alleged trustee will take the property beneficiary.
2. if it is the subject matter that is uncertain the transaction will fail “in limine” or from the threshold. In such circumstances there is nothing certain on which the trust can fasten. If it is the beneficial interest which is to be taken by the beneficiaries which is uncertain there is may a trustee in favour of the settlor or rep if he dead. Or in certain cases in favour of the residual legatee is there is one. There may also be cases where p-art of the trust is certain in which case the uncertain parts may go to the person entitled to the certain parts. Sometimes the maxim of equity will be applied to divide equally.
3. if it is the objects that are uncertain with the exception of the charitable trust there will be a resulting trust either in favour of the settlor, his estate if he is dead, or in favour of the residuary legatee.
The law states that for a trust to succeed those three certainties must be established.