These are notes on the three certainties created in 2019. They follow a structured format which condenses the relevant case law, statutory provisions and academic opinion that are relevant to the topic to aid with exam revision.
Trust Formation/Three certainties demonstrate intention to
create a trust
The three certainties Marguiles v Marguiles The phrases ‘’knowing his
wishes’’ and ‘’giving what is
Note: charitable trusts do not need to satisfy the requirement for
appropriate’’ were too vague
certainty of objects.
Lambe v Eames Money left ‘’to be at her
disposal, in any way she may
think best for herself and her
What are the three certainties? family’’ was held to be a gift
rather than the declaration of
In order for the declaration of a trust to be valid, it must satisfy a trust
the ‘’three certainties’’ This means that there must be sufficient Jones v Lock Isolated, loose conversation
certainty in relation to all of the following three issues: will also not be sufficient. The
example in this case was
‘’Look you here, I give this to
baby: it is for himself, and I
Intention: am going to put it away for
him, and will give him a great
Is it clear that the settlor intended to create a trust?
deal more along with it’’
Comiskey v Bowring-Hanbury ‘’I direct that all my estate
shall be divided equally’’ was
Subject matter: sufficiently certain as the
language was imperative
A. What property will be subject to the trust; and Paul v Constance Conduct can be sufficient to
B. What shares will the beneficiaries have in that property? demonstrate intention, in this
case sharing lottery winnings.
Note: in this case the settlor
Objects: also gave oral assurances.
Is it clear who will be the beneficiaries of the trust?
CASES:
Re Kayford- The court confirmed that there is no
CASE: Knight v Knight (1840) – In order for a trust to be valid, the
particular form of words or phrasing that establishes
three certainties must be found
intention. Instead of looking for key words, the
Mussoorie Bank v Raynor (1882)- Whilst the three elements are behaviour of the settlor and the overall context must be
often analysed separately, there is a degree of overlap. Thus, a examined
lack of certainty in one area may result in a lack of certainty in Gold v Hill (1999)- Courts will look for the settlor’s most
another. likely intention
Precatory language:
Intention:
Definition:
It must be sufficiently clear that it was the settlor’s
intention to create a trust. When looking for intention, Is language that expresses a future intention or wish.
what is required is imperative wording that
CASE:
demonstrates an intention to create a legally binding
obligation rather than precatory language that merely Re Steele’s Will Trusts (1948):
indicates a wish or a moral obligation
CASES: Facts: Will used the term ‘’request my said son to do all
Re Kayford (1975) – It is not necessary for them to have in his power’’ it was argued that this was a precatory
used the word trust statement as opposed to mandatory. However, the
Re Snowden (1970) – Test is whether the settlor has testatrix’s solicitor copied this exact phrase form an
imposed a mandatory obligation to hold property on older case where it had been held to give rise to a trust.
trust for the benefit of others. Held: The copying of the wording from the previous case
Facts: The testatrix (female testator) left the trust was strong evidence of the testatrix’s intention that the
property to her brother saying that he ‘’would know property was to devolve as it did in that case. Thus, in
what to do’’ looking at the entire context, and not just the language
Held: There was no intention that the brother should used, a trust was to have arisen.
hold the property for the benefit of his nephews and
nieces.
Sham intention:
Examples of intention from case law:
The courts also look out for sham intention, where,
Kasperbauer v Griffiths ‘’She knows what she has to upon examination, it deemed there is no actual
do’’ was too vague to intention to create a trust, despite it initially appearing
so.
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