The Three Certainties: Subject Matter

• What are the Three Certainties in trust law?

  Subject Matter, Objects, and Intention
• What does certainty of subject matter in a trust refer to?

  It refers to the need for the property to be sufficiently certain when creating a trust.
• Why is certainty of subject matter required in a trust?

  Because if the subject matter is uncertain, trustees cannot distribute the property to beneficiaries.
• What happens if there is uncertainty in the subject matter of a trust?

  Such uncertainty will cause the trust to fail.
• What is the nature of the test for certainty of subject matter?

  The test is objective and aims to uphold the settlor's wishes.
• What does the objective test for certainty of subject matter assess?

  It assesses whether the trust property or beneficial interest is identifiable or ascertainable.
• From whose perspective does the court evaluate certainty of subject matter?

  The court evaluates it from the perspective of a reasonable person, not the settlor.
• What are the two principal issues related to certainty of subject matter in trusts?

  • Uncertain trust property
  • Uncertain beneficial interest
• What is an example of uncertain trust property?

  A transfers 100 Play Station games to B to hold “some” of them for C.
• Why is the trust property uncertain in the example given?

  Because it is unclear which games should be given to C.
• What challenge does the trustee face with uncertain trust property?

  The trustee cannot know which games should be held for C's benefit.
• What is an example of uncertain beneficial interest?

  A transfers 100 Play Station games to B to hold “some” for C and the rest for D.
• What issue arises with the two beneficiaries in the uncertain beneficial interest example?

  The trustees do not know how to portion the games between C and D.
• What is the challenge for the trustee in determining the beneficial entitlement?

  It is impossible for the trustee to know the exact entitlement that should go to D.
• What types of property can form the subject matter of a trust?

  Both tangible and intangible property can form the subject matter of a trust.
• How is tangible property defined?

  Tangible property is personal property that can be felt, touched, and physically relocated.
• How is intangible property defined?

  Intangible property is property without a physical existence.
• What was the issue in Swift v Dairywise Farms Ltd regarding dairy produce quotas?

  The issue was whether dairy produce quotas could constitute “property” capable of being held on trust.
• What was the court's holding in Swift v Dairywise Farms Ltd regarding milk quotas?

  The court held that such quotas are independent assets having economic value and can form the subject matter of a trust.
• What is the most popular virtual currency?

  Bitcoin
• How are virtual currencies primarily created?

  They are created through a process called “mining.”
• Do virtual currencies constitute “property” according to Virgo?

  Yes, they have characteristics of property and can be held on trust.
• What was the claimant's action in AA v Persons Unknown [2020]?

  The claimant provided insurance against cyberattacks and sought to recover ransom paid in bitcoin.
• How much did AA pay in bitcoin for decryption software?

  AA paid US$950,000 in bitcoin.
• What was the question before the court in AA v Persons Unknown?

  The question was whether the bitcoins held in the account could be seen as ‘property’.
• What did Bryan J grant in AA v Persons Unknown?

  Bryan J granted the application for an interim proprietary injunction against the defendants.
• What did Mr. Justice Bryan conclude about cryptocurrencies in relation to property law?

  He concluded that cryptocurrencies can be seen as a form of property capable of being held on trust.
• What was the outcome of Wang v Darby [2021] regarding crypto assets?

  The High Court found that no trust existed for crypto assets, but showed willingness to apply trust principles.
• What did Osbourne v Persons Unknown [2022] establish about non-fungible tokens?

  It established that non-fungible tokens are property and can be held on trust.
• What did the Law Commission's Digital Assets Report aim to clarify?

  It aimed to clarify the legal position on the use of digital assets in modern society.
• What was the Law Commission's tripartite approach regarding digital assets?

  The approach included prioritizing common law development, targeted statutory law reform, and support from industry-specific technical experts.
• Why did the Law Commission prioritize common law development for digital assets?

  Because common law is sufficiently flexible to accommodate digital assets and keep up with changes.
• What did the Law Commission recommend regarding statutory law reform?

  They recommended legislation to express the existing common law position on digital assets.
• What did the Law Commission recommend regarding guidance on digital assets?

  They recommended creating a panel of industry-specific technical experts to provide non-binding guidance on digital assets.
• What issue have courts faced regarding trust property found in a larger mass of goods?

  The courts have had to deal with issues surrounding the identification of trust property within a larger mass.
• To whom did the testatrix intend to bequeath her property after her brother's death?

  Her late husband's grandchildren
• What happened to the testatrix's brother after her death?

  He died intestate
• What was the Treasury Solicitor's argument regarding the testatrix's gift to her brother?

  That it was an absolute gift and the Crown was entitled bona vacantia
• What did the court hold regarding the brother's entitlement to the property?

  He was entitled to a mere equitable life interest
• What action did the grandchildren take regarding the estate?

  They applied to the court to claim equal shares of the estate