Book contents
- Frontmatter
- Contents
- Preface
- 1 Historical introduction
- 2 Equitable remedies
- 3 The classification of trusts and powers
- 4 The three certainties
- 5 Constitution of trusts
- 6 Formalities for the creation of a trust
- 7 Private purpose trusts
- 8 Unincorporated associations
- 9 Resulting trusts
- 10 Constructive trusts
- 11 Trusts of the family home
- 12 Secret trusts and mutual wills
- 13 Charities; the Charities Act and the rules of cy près
- 14 Trustees: appointment, retirement and capacity
- 15 Duties and powers of trustees
- 16 Variation of trusts
- 17 Fiduciary duties and breach of fiduciary duties
- 18 Breach of trust and defences to breach of trust
- 19 Remedies against strangers to a trust
- 20 Tracing
- Index
4 - The three certainties
- Frontmatter
- Contents
- Preface
- 1 Historical introduction
- 2 Equitable remedies
- 3 The classification of trusts and powers
- 4 The three certainties
- 5 Constitution of trusts
- 6 Formalities for the creation of a trust
- 7 Private purpose trusts
- 8 Unincorporated associations
- 9 Resulting trusts
- 10 Constructive trusts
- 11 Trusts of the family home
- 12 Secret trusts and mutual wills
- 13 Charities; the Charities Act and the rules of cy près
- 14 Trustees: appointment, retirement and capacity
- 15 Duties and powers of trustees
- 16 Variation of trusts
- 17 Fiduciary duties and breach of fiduciary duties
- 18 Breach of trust and defences to breach of trust
- 19 Remedies against strangers to a trust
- 20 Tracing
- Index
Summary
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:
it can be created by the settlor declaring that either he now holds all or part of his property on trust for others; or
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.
- Type
- Chapter
- Information
- A Student's Guide to Equity and Trusts , pp. 47 - 64Publisher: Cambridge University PressPrint publication year: 2012