The Three Certainties

Question 1

Knight v Knight (1840)

Answer 1

In the express private trust there is a need for certainty.

1. Certainty of Intent
2. Certainty of Subject Matter
3. Certainty of Object

Question 2

Test for certainty of intention

Answer 2

Objective test based on the language used in the trust document and the circumstances in which it was created. TEST- The court should consider whether a reasonable person would think, based on the language used and the objective knowledge available to the settlor at the time, whether he intended for someone to hold property for the benefit of another so that he is under a duty to do so.

Question 3

The court’s approach when the word ‘trust’ is used in the document vs when it is not.

Answer 3

Present: This may be an indication of intention, but it is not conclusive.
Absent: Equity looks to intent not form.

Question 4

The effect of precatory words.

Answer 4

Usually insufficient to demonstrate intention to create a trust because they do place the trustee under an obligation to do something. Indicative of a moral obligation. e.g. desire, wish, confidence, hope, belief, require.

Question 5

Re Adams and Kensington Vestry (1884).

Answer 5

CONFIDENCE ‘I give all my estate and effects unto the absolute use of my wife in full CONFIDENCE that she will do with it what is right to the disposal thereof between my children, either in her lifetime or in her will on her decease.’ No trust for the children - created an absolute gift to wife. ‘Confidence’ - if the rest of the context shows the trust is intended, may make a trust, but we must look at the whole will, and if the confidence is that she will do WHAT IS RIGHT as regards disposal, there is not on true construction a trust imposed on her.’