The 3 Certainties

Question 1

What are the 3 certainities?

Answer 1

1. The intention to create a trust
2. The certainty of subject matter (what the trust is over - what is the property)
3. The certainty of objects (beneficiaries)

Question 2

For what trusts does the 3 certainties need to be present for it to be valid?

Answer 2

Express trusts - aka trusts that intentionally been made

Question 3

For what trusts are the 3 certainties not required?

Answer 3

Implied trusts - 3 types of it: statute; constructive and resulting.
Charitable trusts.

Question 4

Can a trust over land be stated orally for it to be valid?

Answer 4

No. It must be written when it comes to land.

Question 5

How can ‘intention to create a trust’ criteria be satisfied?

Answer 5

1. It is clear through what they have written, they don’t need to explicitly say ‘held on trust’. Read what has been said and use common sense.
2. Can be satisfied through conduct (aka nothing has been written): such as saying to B that they are holding some money for them, and then S puts it into an account under B’s name and says they can have it after S dies (this is a self-declaration trust).

Question 6

How can ‘the certainty of subject matter’ be satisfied?

Answer 6

The property needs to be individually identifiable.

IDENTICAL SUBJECT MATTER:

• IF TANGIBLE: saying the ‘bulk’ or ‘amount of’ of the wine crates does not create enough certainty. Must be specific. Wines have different years, types etc.
• IF INTANGIBLE: stocks etc are identical but SETTLOR does DO NOT have to be specific about it as it is all the same.

Question 7

How can ‘rhe certainty of objects’ criteria be satisfied?

Answer 7

Settlor must make the beneficiaries clearly identifiable.

When settlor does not make the beneficiaries clear, the property flips back to the settlor (because there is no identifiable person for it to go to!) - AKA a resulting trust

Question 8

When it is fixed trusts how is ‘the certainty of objects’ criteria satisfied?

Answer 8

You should be able to make a complete list of the beneficiaries.

There is conceptual certainty: children; spouse; club etc.

There is evidential certainty: individuals within the class mentioned can be identified with certainty - such as children, paternity tests etc. Or club members who were at the club at the time Settlor was there and there is a register of the peoples names.

Question 9

When it is a discretionary trust how is ‘the certainty of objects’ criteria satisfied?

Answer 9

In a discretionary trust - when the trustee has power over who the beneficiaries are and what they should receive.

Need to use the individual ascertainability test.

Settlor would have given them a loose list of who the beneficiaries should be.

+ CONCEPTUAL CERTAINTY trustee MUST know who comes within the class of people and who doesn’t - from there they can decide who in that class should be given the property.

+ EVIDENTIAL CERTAINTY: trustee must be able to show that that beneficiary belongs in that class identified by settlor.Burden of proof is on the beneficiary to prove they belong in that class.

Question 10

Is the description of ‘friends’ conceptually certain?

Answer 10

No… like who is a friend etc. Are acquaintances included?