Introduction

On one level this chapter is simply concerned with completing the description of the necessary requirements for creating a valid express trust. This process provides a snapshot of the present rules relating to ‘certainty of objects’ and the ‘beneficiary principle’ whilst simultaneously identifying unresolved problems and teasing out inconsistencies. But as in other areas of law, the rules have not remained static and change here has been dramatic. Indeed during the last four decades the courts have so turned the world of ‘certainty of objects’ upside down that ‘the forms and functions of settlements have changed to a degree which would have astonished Lord Eldon’ (Schmidt v Rosewood Trust Ltd [2003] 2 AC 709 at para 34 per Lord Walker). This dynamic aspect of law-making also deserves attention. A second level of study, therefore, is to examine the shifts that have occurred and to understand the how and why of change.

However, the starting place for this study has to be traced back much further, to the decision in Morice v Bishop of Durham (1804) 9 Ves 399. There Sir W Grant summarised the court's approach as follows: