The Three Certainties: Intention

• What are the three certainties in express trusts?

  Certainty of intention, certainty of subject matter, and certainty of objects (beneficiaries).
• What are the necessary building blocks of express trusts?

  • The three certainties
  • They are essential for the creation of valid express trusts
• How can the concept of the three certainties be illustrated?

  • Think of a cake
  • Different cakes have different ingredients, but all share basic components
• What are the basic ingredients needed to make a cake?

  • Eggs
  • Flour
  • Water
  • Salt
  • Fats
  • Dairy
• What do the three certainties represent in express trusts?

  They are the fundamental components that make up express trusts.
• What are the requirements for an express trust?

  • Certainty of intention
  • Certainty of subject matter
  • Certainty of objects (beneficiaries)
• In which case were the three certainties outlined by Lord Langdale MR?

  Knight v Knight (1840) 3 Beav 148.
• What happens if there is no certainty in an express trust?

  The trust fails.
• What are the three certainties as outlined in Knight v Knight?

  Words must be imperative, the subject must be certain, and the objects must be certain.
• How are the different certainties related in express trusts?

  • They can be seen as separate concepts
  • They are interrelated and depend on each other for the trust to be valid
• Do the three certainties apply to concepts outside of private express trusts?

  Yes, they apply to gifts and charitable trusts as well.
• How are objects treated differently in charitable trusts compared to express trusts?

  Charitable trusts require certainty of intent and subject matter, but objects are treated as purposes rather than specific individuals.
• What is the importance of the three certainties in express trusts?

  • Identifies parties: Settlor, trustee, and beneficiary
  • Ensures careful drafting
  • Creates valid trusts
  • Aids courts in legal application and case decisions
• Why is modern day relevance of the three certainties significant?

  It applies to contemporary issues such as cryptocurrency.
• What is the certainty of intention in express trusts?

  It refers to the requirement that the settlor must intend to create a trust.
• What limits the validity of intention in creating a trust?

  Capacity, such as being of sound mind and of legal age.
• What happens if a child attempts to create a trust?

  The settlement is voidable before or reasonably after attaining 18, the age of majority.
• Why are trusts made by children considered voidable?

  Children are deemed to lack the necessary maturity to determine whether a trust should be created.
• What is the difference between a void and a voidable trust?

  A voidable trust remains effective until revoked, while a void trust is ineffective from the outset.
• What happens to a voidable trust when the child reaches adulthood?

  The trust remains in hibernation until the child chooses to give effect to the settlement.
• What happens if a trust is made by a mentally incapacitated person?

  It is void ab initio (from the beginning).
• What does "void" mean in the context of a trust?

  It means the trust is ineffective from the outset and cannot be enforced later.
• What does the Mental Capacity Act 2005 allow the court to do?

  It gives the court discretion to make a settlement of property or execute a will on another’s behalf.
• What is the essential test of intention in creating a trust?

  • There must be a conscious creation of a trust
  • The settlor must intend to create a trust, not something else
• Does the settlor need to understand that they are making a trust?

  No, they do not need to understand the terminology or effect in law.
• Which case illustrates that a settlor does not need to understand the effect in law when creating a trust?

  Paul v Constance [1977] 1 WLR 527.
• Is it necessary to use the word 'trust' to create a trust?

  No, it is not necessary to use the word 'trust' to create one.
• What did Lord Eldon state regarding the language used to create a trust?

  Words must be imperative to create a trust.
• Can the word 'trust' be omitted in creating a trust?

  Yes, the word 'trust' need not be used to create one.
• Is there any particular language required to create a trust?

  No particular language is required to create a trust.
• Does the term 'trustee' need to be used to create a trust?

  No, even the word 'trustee' doesn’t have to be used.
• Can a trust be created even if the word 'trust' is used incorrectly?

  Yes, it may be the case that a trust has not been created despite the word 'trust' being used.
• What is the maxim regarding equity and intention?

  • Equity is concerned with substance, not form
  • The court must assess the creator’s intent
• How can intention be evidenced in creating a trust?

  Intention can be evidenced by written documents, oral statements, or implied by the court.
• What must the words used in creating a trust be to avoid failure?

  The words must be imperative; otherwise, the trust will fail.
• What are precatory words and how do they affect trust creation?

  Precatory words do not create a trust as they lack the requirement for another to perform a duty.
• What is the significance of the term 'precatory' in trust law?

  It refers to words that express a wish or desire but do not impose a legal obligation.
• How did the approach to precatory words change after the Executors Act 1830?

  • Courts became less lenient with the use of precatory words
  • The Court of Chancery leaned towards construing expressions of desire as binding trusts
• What was the outcome of Lambe v Eames regarding the will's wording?

  It was held to be an absolute gift due to the precatory words used.
• To whom did the testator leave her death benefits?

  To the testator’s nieces who survive, and equally if in default.