The three certainties Flashcards
What are the three certainties?
- Certainty of intention
- Certainty of subject matter
- Certainty of objects
What type of approach is taken when ascertaining the certainty of intention?
Objective approach
How can intention be ascertained?
- Written documents
- Use of the word ‘trust’
- Segregating or earmarking assets
- The importance of context
- Relationship with the other certainties
How can the meaning of words in a written document be ascertained?
- By their natural ordinary meaning
- Any relevant contextual features of the document
- Facts which are known to/assumed by the author(s) of the document when it was created
- Common sense
What are the two distinct requirements of certainty of subject matter?
- The trust property requirement - it must be possible to identify the trust property
- The beneficial entitlement requirement - it must be possible to ascertain the beneficiary’s interest in the trust property
When are problems commonly encountered when identifying trust property?
- A person attempts to identify the trust by description
- A person attempts to create a trust of a specific number of items from a larger quantity pf similar items without identifying those to be held on trust
What are examples of intangible assets?
- Company shares
- intellectual property rights
- debts
what does fungible mean?
An identical and readily exchangeable asset
Examples of tangible assets?
- Diamonds
- Cash
What types of trust requires a greater degree of certainty for the test of certainty of objects?
Fixed trust - trustees must know exactly how to divide the assets
In which circumstances is the degree of certainty concerning the certainty of objects a less stringent test?
- A discretionary trust
- Where the power of appointment exists
In what circumstances regarding certainty of objects should the ‘is/is not test’ be used?
Powers of appointment
