3 Certainties

3 Certainties

1. Certainty of subject matter

   • The court must have sufficient guidance to know what the settlers intent is.
     • Two types of uncertainty of subject matter.
       • 1. The amount of property to wish the trust obligation is intended to attach– donee takes it absolutely. Palmer vsimmonds - the wife left the husband - "bulk" off my rescissory estate two for my relatives–no trust as what is the definition of bulk. It was gifted to the husband absolutely.
       • 2. As to the beneficial share of each of a number of beneficiaries. In which case the transferee holds the property on resulting trust. Sprange v Barnard - the wife gave properly to the husband "For his sole use, asked his death the remaining part of what is left, that he does not want for his own, once and uses, is to be divided between family members. Husband to get absolutely as uncertain to which property was meant.
     • Tangible property
       • Re-London Wine Company–wine dealers had confirmed that dealers were so beneficiaries– It was in the general stock– Wind had been paid for but not separated–it was in the bilk so not the making of a trust - if it had been separated then a trust would have been created
         • Must have separation– No trust and less separated 20 bottles out of 80– But which 20 bottles
     • Intangible property
       • Mac Jordan construction v Brookmount - building contract -3% from each steel was to be held for builder - the fund was actually set up - Bank account needed to be segregated to form trust.

2. Certainty of object - people

   • What obligations need to be performed

3. Certainty of intention

   • The trustee must know his obligations, What he has to do and to whom the obligations are owed
     • Question: did the Settlor intend to enter into a legally binding obligation?
       • RE SNOWDEN - the real question is what did he intend should be the sanction? Was it to the authority of the Court of Justice, or the conscience of the devisee?
     • KIN LOCH v secretary of State for India 1882 - "There is no magic in the word trust"
     • Precatory words e.g. Confidence, hope, desire. Rely upon the conscience of the recipient, To the exclusion of legally enforceable obligation
     • RE Adams and Kensington vestry–"Infill confidence that she would do what was right as to the disposal thereof between the children either in her lifetime or by will after her decease"
       • No certainties – and The use of conscience shows no legal obligation but only a moral obligation. no legal trust.
     • Comiskey v boring hanbury - absolutely in confidence that she will make full use of it as I would have made myself and that after death she will devise it to one or more of my nieces as she thinks fit. And in default of doing so, I hear by direct that all my estate and property acquired by her under my will shall at her death be equally divided among the surviving nieces
       • Starts precatory(absolute to wife) but the second part adds on a bound obligation

4. Certainty = I.S.M

5. EXPRESS TRUST - Settlor transfers to the trustees on trust or declares himself trustee.

   • Problem arises when the trust is created unconsciously. CASE: Paul v Constance... Regarding a bank account "money as much yours as it is mine" - court info trust. They didn't realise that they had created a trust. The court inferred that there was a trust and asked who was getting the benefit of it. Trust = separation of legal owner and a beneficial ownership. The seller has no further role once the trust is created unless he is the trustee. Someone needs to exercise the right.

6. There is no trust if the three certainties are not present. This is a long established rule.

7. knight v knight - a) the need for the trustee(Recipient of the property) to know what obligations I attached to you and to whom they are owed and b) the need for a court to have sufficient guidance as to the settlers intention to be able to determine whether any such obligations have been performed, And if they have not, to enforce performance.

   • sum - what they have to do, Who they want to, What the state needs to do.