The Three Tests a Trust Must Meet: Trust: Certainty of Intention, Subject Matter, Objects and Beneficiaries
If trust does not meet test of certainty it will fail/be void
If trust to be valid must meet three certainties: (Knight v Knight)
Certainty of intention
Certainty of subject matter
Certainty of objects/beneficiaries
Fundamental principle: the trust must be capable of being controlled + enforced
There must be “sufficient practical certainty in [the trust’s] definition for it to be carried out, if necessary with the administrative assistance of the court, according to the expressed intention of the settlor” (Lord Wilberforce in McPhail v Doulton (1970))
There is a trust instrument, intentions of settler must be sufficiently certain to carry out the trust, otherwise trustee’s or court would not know what to do. Sometimes can be some uncertainty + court will state how should be understood
Not have to be completely certain but me practically certainty
Certainty of intention:
Must be certain that settlor intended to create a trust
No formal words required – can be created informally, lay person can create a trust even where does not know what a trust is est. in Paul v Constance: C left wife + living with P, C was injured in accident + received compensation + put compensation in bank account + told P “the money is as much yours as mine” + soon after he died. Dispute between P + C’s wife as if C created trust in account than P would get half, if he hadn’t then would go to wife. Held in those words he created a trust, even though account in his name should be accessible to both. No reason to think he would know about trusts, his intention was for them to share money – if we put a legal instruction of what his intention was he created a trust.
Precatory words” (= words of request) vs imperative or mandatory words (=words of instruction)
Mugsoorie Bank v Raynor (1882): “… feeling confident that she will act justly … in dividing the same …” = Man left all property to wife confident that will act justly to children dividing same when no longer required by her –
If trust to be valid must meet three certainties: (Knight v Knight)
Certainty of intention
Certainty of subject matter
Certainty of objects/beneficiaries
Fundamental principle: the trust must be capable of being controlled + enforced
There must be “sufficient practical certainty in [the trust’s] definition for it to be carried out, if necessary with the administrative assistance of the court, according to the expressed intention of the settlor” (Lord Wilberforce in McPhail v Doulton (1970))
There is a trust instrument, intentions of settler must be sufficiently certain to carry out the trust, otherwise trustee’s or court would not know what to do. Sometimes can be some uncertainty + court will state how should be understood
Not have to be completely certain but me practically certainty
Certainty of intention:
Must be certain that settlor intended to create a trust
No formal words required – can be created informally, lay person can create a trust even where does not know what a trust is est. in Paul v Constance: C left wife + living with P, C was injured in accident + received compensation + put compensation in bank account + told P “the money is as much yours as mine” + soon after he died. Dispute between P + C’s wife as if C created trust in account than P would get half, if he hadn’t then would go to wife. Held in those words he created a trust, even though account in his name should be accessible to both. No reason to think he would know about trusts, his intention was for them to share money – if we put a legal instruction of what his intention was he created a trust.
Precatory words” (= words of request) vs imperative or mandatory words (=words of instruction)
Mugsoorie Bank v Raynor (1882): “… feeling confident that she will act justly … in dividing the same …” = Man left all property to wife confident that will act justly to children dividing same when no longer required by her –