Certainty of Intention
True or False: In accordance with Paul v Constance, technical language (i.e. "I declare myself trustee") is required for a trust to arise
FALSE - The settlor doesn’t need technical language because plain, everyday words can be enough if they show an intention that the property is to be held for another.
Fill in the blank: It must be possible to ascertain with certainty ___ is to be the subject-matter of the trust
Which property
TRUE OR FALSE: A trust can fail if the class of beneficiaries is so wide that it cannot be realistically administered (Bonus 50 points if you can identify the doctrine).
True (administrative unworkability).
According to Byrne v Kendle, what was the question that needs to be considered to determine the certainty of intention? (Bonus 50 points if you mention what is NOT to be considered)
What is the meaning of what the parties have said? (Not their unexpressed subjective intentions.)
What else must be specified to have certainty of the subject-matter?
The quantum of the beneficiaries' interests
What test for certainty of objects in relation to powers of appointment was confirmed in Re Gulbenkian’s Settlement Trusts?
The “any given postulant” test. It must be possible to say of any given individual whether they are or are not within the class.
What is the difference between precatory words and imperative words?
Precatory words (e.g., “I wish,” “I hope”) suggest a moral obligation, not a trust whereas imperative words (e.g., “shall,” “must”) indicate enforceable intent
In White v Shortall, why was certainty of subject matter satisfied even though the 222,000 shares were not specifically identified?
The court treated all 1.5 million shares as subject to a single trust, with 222,000 shares held beneficially for the claimant and the remainder for the trustee, so segregation was unnecessary.
What is the difference between the list certainty test and the criterion certainty test? (Bonus 50 points if you can identify which type of trust each test applies to).
List certainty requires making a complete list of all beneficiaries (fixed trusts), while criterion certainty only requires being able to say if a person is in or out of the class (discretionary trusts).
What did Re Williams illustrate about certainty of intention?
Even if words don’t look strictly mandatory, they can still create a binding obligation if their true meaning shows an intention to impose one - “Not only in wills but in daily life, an expression may be imperative in its real meaning although couched in language which is not imperative in form.” (Lindley LJ)
Why is the reasoning in Hunter v Moss considered controversial by some academics?
It arguably undermines the strict rule of certainty by treating shares differently from other fungible assets. It remains good law in England, but its reasoning is debated.
What is the difference between linguistic (conceptual) uncertainty and evidential uncertainty?
Linguistic (conceptual) uncertainty arises where the wording of the class is vague or unclear (e.g. ‘friends’), so the trust fails because trustees cannot know who is in or out. Evidential uncertainty, by contrast, concerns the proof of whether someone fits a clearly defined class (e.g. ‘employees of X’), which does not invalidate the trust because the court can assist in resolving evidential questions.