Key points

• a private express trust must satisfy three certainties: certainty of intention, subject matter and object;

• it must be clear from the words used that the person holding the property is under a duty to hold it for others;

• precatory words will not create a trust;

• there must be certainty as to what property forms the subject matter of the trust;

• it must be possible to identify the objects of the trust with certainty;

• there are two aspects of certainty of objects: evidential and conceptual certainty;

• conceptual certainty is necessary for all types of trust;

• evidential certainty is not necessary for discretionary trusts;

• different tests for certainty of objects apply to fixed trusts, discretionary trusts and gifts subject to a condition precedent;

• the test for certainty for fixed trusts is the complete list;

• the test for certainty of objects for discretionary trusts is the ‘given postulant test’ which is the same test as applied for powers; and

• the test for certainty in a gift subject to a condition precedent is whether it could be said with certainty whether any one person falls within the class.

The requirement of certainty: why is it necessary?

A trust can be created in two ways:

1. it can be created by the settlor declaring that either he now holds all or part of his property on trust for others; or

2. the settlor transfers property to trustees to hold for the benefit of a beneficiary.

In both cases the law will only uphold the trust if it complies with the three certainties as laid down by Lord Langdale in the case of Knight v. Knight (1840) 3 Beav 171.