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Three Certainties Notes

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Certainty
S = settlor, T = trustee, B = beneficiary
Three certainties necessary to create a valid express trust:

1. Certainty of intention

2. Certainty of subject-matter

3. Certainty of objects
Certainty of intention identifies the reason for recognising a trust.
Certainty of subject-matter and objects ensure that the trustees and the court have sufficient information to give effect to the trust intended by the settlor.
NB: Uncertainty in subject matter and/or objects may reflect a lack of intention to create a trust, i.e. that the purported settler did not intend his directions to have legal effect or that he had not fully made up his mind.
The courts have distinguished between different kinds of uncertainty:

1. Definitions a. Where the definition is imprecise or ambiguous, there is conceptual /
semantic / linguistic uncertainty, e.g. a trust in favour of one's "friends".

2. Application a. Where there is insufficient factual information to determine what people or things match the definitions given, there is evidential / factual uncertainty.
i. Where it is necessary to know from the outset how many things or people match the definitions, the issue is enumerability.
ii. Where the whereabouts or continued existence of Bs or potential Bs is unclear, there is the issue of ascertainability.
A complete lack of certainty about either subject-matter or objects will preclude a trust from arising, but a degree of uncertainty may be tolerated.
The three certainties…

1. Certainty of intention (Paul v Constance)
a. There must be evidence of an intention to create a trust from "the various things that were said and done by [the parties] during their time together against their own background and in their own circumstances" (Scarman LJ in
The obligations
Paul v Constance, where S assured B that "the money is as much yours as of trusteeship mine" and they paid their joint bingo winnings into that bank account and are onerous, so also withdrew money which they split between them).
should not be i. The use of technical legal language is not necessary, but creates a imposed where strong presumption of an intention; "the question is whether in the language is substance a sufficient intention to create a trust has been ambiguous or manifested" (Megarry J in Re Kayford).
permissive in character. ii. Precatory words expressing the wish/hope that the recipient will use the property for the benefit of some named individual is insufficient as it imposes no legal obligation (Lambe v Eames)
b. An intention to make an outright gift is insufficient to establish an intention to create a trust (Richards v Delbridge)  equity will not perfect an imperfect gift (outright transfer).
i. BUT: In Choithram International v Pagarani, the use of the words "I
give to the foundation" was held to create a trust, despite the use of the word 'give'. The words were held to be an announcement that S
was transferring his property to the trustees named in the trust deed.
c. Bs' property must be separated from T's own property, but the Bs' property can be mixed together.
i. BUT: Exceptionally, a trust exists even where the trust property is mixed with T's own property if S intended the trust property to be
Ts must deal with the treated differently from his other property (Re Kayford, where S
trust property decided it would not make further deposits of its own money into the differently to their
'trust' account nor would it make withdrawals from that account for own property, so are generally required to its own use and enjoyment).
keep the trust ii. A duty to segregate the trust property is a good indication that a property separate trust was intended (Channell J in Henry v Hammond), while "the from their own absence of such a requirement, if there are no other indicators of a assets.
trust, normally negatives it" (Watkins LJ in R v Clowes).
d. A contract for the benefit of a third party is not to be mistaken for a trust; "it is not legitimate to import into the contract the idea of a trust when the parties have given no indication that such was their intention" (Greene MR in
Re Schebsman).
i. Du Parcq LJ at (104) stressed the importance of keeping alive the parties' CL right to vary the terms of the contract and only finding an intention where the language and circumstances clearly indicate one.
e. Objective or subjective approach?
i. Lord Millett in HoL at [71] of Twinsectra v Yardley asserted that an objective approach should be taken: would the reasonable person have inferred from S's words and conduct an intention to create a trust?

1. BUT: The case law shows the courts prefer a subjective approach, e.g. where proving the purported trust is a sham,
e.g. Midland Bank v Wyatt.

2. BUT: The reason for objectivity in contract law is to protect the other party, who will tend to rely on what he reasonably believes A's intentions to be. A trustee will not rely in the same way.

2. Certainty of subject-matter (Re London Wine Co, Re Goldcorp)
a. Any asset that can be transferred outright can form the subject-matter of a trust, e.g. physical things, debts, shares, IP, etc. b. Referring to 'the bulk' of S's residuary estate is insufficiently certain (Palmer v
Simmonds), but requiring 'a reasonable income' to be paid to B is sufficiently certain because S intended the term to be understood objectively (Re Golay)
c. "To create a trust it must be possible to ascertain with certainty not only [1]
what the interest of the beneficiary is to be, but [2] to what property it is to attach" (Oliver J in Re London Wine Co).
i. It follows that S must identify BOTH the source of the trust property
AND which individual assets from the source (Re London Wine Co,
where there was nothing to identify which particular bottles of wine belonged to which purchaser, AFFIRMED by Re Goldcorp)

1. BUT: When all the individual assets from the designated source are identical (i.e. fungible assets), there is no need to specify which individual assets are to be held on trust provided
(i) S identifies the source of the relevant property among his existing assets, and (ii) the collection of assets from this source
Hunter and Pearson together are homogenous (Hunter v Moss, applied in Re Harvard). For mean this exception only applies to homogenous example, '50 of my shares' is insufficient unless S only has intangible property.
shares in 1 company or S indicates which company he means.
a. BUT: This exception only applies to intangible
In these cases, it is sufficient property, even when the trust property is to come to identify the source of the from a collection of identical assets (Pearson v trust property and the
Lehman, where the CoA explained that what was proportion of it which is to be held on trust.
actually held on trust in Hunter was a proportionate interest in the overall trust property, i.e. a 50/950 share of the total shareholding  this explanation does not extend to tangible property).
Knowing which i. The source must still be identifiable with individual property certainty, as well as B's proportionate share belongs to which person
(Pearson v Lehman).
is important where i. This was AFFIRMED by the UKPC in Re some of the property is
Goldcorp, where the gold bullion held for the lost or stolen.
customer base was held mixed together in one vault. Since Goldcorp did not hold the entirety of the customers' orders at any one time, it was necessary to identify which individual gold bullion belonged to which customer. Although
FACTS: Re Sanderson's Trust the company had by its collateral promises in its
S left all his real and brochures to customers that they had title to personal estate to Ts upon bullion held by the company, this did not trust for his brother (B) "to amount to a declaration of trust.
pay and apply the whole or ii. The purpose of the trust may be used to identify the subject-matter any part of the rents, issues of the trust (Re Sanderson's Trust); given the words used by S, this and profits of [S's real and was NOT a purpose trust, but rather a trust for the brother whereby personal estate] for and towards his [B's]
the amount he was to receive was calculated by referring to the maintenance, attendance and comfort", including use of his household goods and furniture. d.

e.

f.

Why did the court not want to find a trust?
Two possible reasons:

1. Uncertainty of SM
BUT: We could say that B
has no claim until T dies,
at which time the subjectmatter is certain.

2. Ts are generally prohibited from benefitting from the trust property
BUT: T may take a benefit if S so provides
THUS: No good reason to prevent floating trust.

purpose. The remaining money would go back to S's estate under a resulting trust.

1. This is different to the later case of Re Osoba, where the whole of the fund was left to B and the specified purpose was treated merely as a motive for making the gift.
Where there are multiple beneficiaries, S must identify which assets are to go to which B, but it is not fatal to the trust if he has left this decision to T,
(e.g. Re Barlow's Will Trusts) or B (e.g. Boyce v Boyce).
A testamentary gift or trust of the residue under a will is not uncertain. In the course of executing the will, the executors will determine to the very penny the residue of the estate. As the saying goes, 'that is certain which can readily be made certain'.
i. This is consistent with Briggs J in Re Lehman, where he held that a trust is sufficiently certain even if its subject matter is at present uncertain, provided the terms of the trust are sufficient to identify the subject matter in the future  suggests some sort of 'floating'
trust is possible…
ii. NB: See below for an explanation of how testamentary trusts work.
'Floating' or 'suspended' trusts occur where S transfers money to T on terms that T may use as much of it as he likes but must on his death leave the remainder on trust for B.
i. Earlier case: Sprange v Barnard (1789) - a testatrix left £300 in securities to her husband "for his sole use; and at his death, the remaining part of what is left, that he does not want for his own wants and use" was to be divided equally amongst three others. The court held the trust was "impossible to be executed".

1. BUT: It is possible to create a power of appointment relating to both capital and income, whereby T can transfer both to K,
with M getting whatever is left.

2. If we tweak that example, and say that instead of K, T is the beneficiary of the power. Thus, T has the power to appoint either capital or income to himself, with the remainder upon
T's death going to M.
a. The only difference is which party benefits from the power of appointment - why should this not be allowed?
i. Webb: It is always unclear what property M is going to get.

1. BUT: The law already allows trusts of uncertain amounts of money when the
'residue' of an estate is left.
ii. Webb: Trusts are usually for the benefit of a person who is not the trustee  inconsistent with the nature of a trust. 1. BUT: If S wants to give T a power to benefit themselves, there is no problem with this.
ii. BUT: Later case: Ottaway v Norman (1972) - the testator had left his house, its contents and his money to his housekeeper for her to use as long as she lived, but on trust to leave the property to his children on her death  court adopted the Australian 'floating'/'suspended'
trust analysis from Birmingham v Renfrew.

1. Brightman J: There was a valid trust of the house and its contents which was "in suspense" during the housekeeper's lifetime, attaching to the property only upon her death, but the trust did not extend to the money.

2. CONSTRAST: Did the 'floating trustee' have any obligation to preserve the trust property?
a. In Birmingham v Renfrew, the court said that gifts
'calculated to defeat' the trust could not be made, but this seems so vague as to be unenforceable.
b. In Ottaway v Norman, the trust did not extend to the money. The trust would be 'meaningless and unworkable' unless the money was given with the obligation that it be kept separate from her own money, and there was none.
iii. Penner: There is no need to develop a new 'floating trust' analysis.
Traditional trust principles are sufficient. The same result can be achieved by transferring the property to B on trust for her life,
remainder to C, with power to B to appoint capital, up to the entirety of the trust funds, to herself during her lifetime.

3. Certainty of objects a. This requirement varies depending on the form of the trust (because some types of trust require more information to function than others):
b. Fixed trusts - either:
i. INDEPENDENT INTEREST: Each B's entitlement may be defined so as to be independent of and distinct from those of the other Bs (if any),
e.g. '£100 to each of my friends'.

1. Test for certainty: B need only prove that he falls within the defined class of Bs  the trust will only fail if T cannot find one person who he is certain falls within the class of Bs - this is the 'ONE PERSON' TEST (applies to gifts too, Re Barlow)
a. Webb: This test applies not only to outright transfers
(GIFTS) but also to (some) fixed trusts; in Re Tuck and
Re Barlow no distinction was drawn between the certainty of objects rules applying to gifts and to trusts.
ii. REFERENTIAL INTEREST: The beneficial interests may be defined referentially, so that any B's entitlement cannot be quantified

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