Nature and classification of trusts—the three certainties

The following Private Client practice note provides comprehensive and up to date legal information covering:

  • Nature and classification of trusts—the three certainties
  • Certainty
  • Certainty as to the intention of the settlor to create a trust
  • Certainty as to the property to which the trust is to attach
  • Property
  • Beneficial interests
  • Certainty as to persons or objects who are to benefit
  • Uncertainty as to beneficiaries under discretionary trusts—the old test
  • Uncertainty as to beneficiaries under discretionary trusts—the new test
  • Administrative workability
  • More...

Nature and classification of trusts—the three certainties

Certainty

In order for a settlor to create a private express trust the three certainties must be present, namely:

  1. certainty as to the intention of the settlor to create a trust (known as certainty of words), the trust property being intended to be kept separate from other property of the trustee

  2. certainty as to the property to which the trust is to attach (known as certainty of subject matter)

  3. certainty as to persons or 'objects' who are intended to benefit (known as certainty of objects)

Charitable purpose trusts differ from express trusts for the benefit of persons in respect of the three certainties only in that they do not need to satisfy the certainty of objects so long as there is a general charitable intention.

Certainty as to the intention of the settlor to create a trust

The certainty of intention is satisfied if there is sufficient evidence to show that the settlor or testator clearly intended to create a trust. If the word 'trust' is used, it will normally be a strong indicator that a trust was intended.

No technical expressions are necessary to create a trust: a trust may be created by the general tenor of an instrument without using the word 'trust'. For example, the words 'for the purpose of providing some useful memorial to myself' were held in Re

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