Milroy v Lord and the Three Certainties in Trusts

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Critically analyse the difference between Milroy
A trust may be sufficiently certain to be valid and hence enforceable. On this regard, three
certainties are required namely;
1) Certainty of intention,
2) Certainty of subject and
3) Certainty of object.1
If all the certainties are present, court can impose the trust if required. However, where the
trustee fail to do so, then the disposition can be rendered as void as it fail to comply with the
certainties requirement. The three certainties were later reaffirmed in the case of Hunter v Moss.2
Furthermore, until the relevant trust property has been vested, that is if the legal title is transferred
to the intended trustee, a trust will not be completely accomplished. If it has not been transferred by
the right means as per the legal rules, then it will not be considered as operable and will fail to be
considered as a significant result. However, this can have an exception if the necessary formal steps
have been completed to entrust the property in the trustee, or an equitable right is given to the
trustee or the intended beneficiary that compels the settlor to carry out the remaining necessary
steps to entrust the trusted property in the trustee.
Additionally, Equity does not assist a volunteer.3 When a valuable consideration is not given to the
person to whom the transfer is intended to be made, they are considered to be volunteer. Since
settlor makes a gift to the beneficiaries, they would be given no consideration and hence makes the
most trusts, as donative transactions. However, regardless of the fact that the beneficiaries are
volunteers, they can also enforce the trustee's duties once the trust is properly constitutive as well
as operative. However, in case the trust has not been fully constituted, they have no legal rights and
the court would not be able to assist in such cases.
Similarly, Milroy v Lord4 has identified important three ways in transferring the legal title which gives
a benefit with the property from the absolute owner of property. The ways are namely,
1. Making an outright gift,
2. Self-declaration where the certain property declared by the settlor vested on him or her is
subsequently to be hold on trust for beneficiary
3. Settlor effectively transfers certain property to trustee on the trust that he will hold the
property for the respective beneficiaries.
Apart from three certainties, there should be certain formalities while documenting in order to
ensure validation of a trust. The transfer of legal ownership of some properties should be
incorporated in written format or through any other formal processes. Thus, the beneficiary interest
1 Atkins, S. (2015). Equity and Trusts. Routledge.
2 Pearce, R. A., & Barr, W. (2015). Pearce & Stevens' Trusts and Equitable Obligations. Oxford University Press.
3 Hedlund, R. (2016). Conscience and Unconscionability in English Equity (Doctoral dissertation, University of
York).
4 Liew, Y. K. (2017). Rationalising Constructive Trusts. Bloomsbury Publishing.

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or the legal title in the property can be transferred to the beneficiary or trustee respectively if and
only if the trust is provided in written rather than merely in the form of oral promises.
Some statutes sets the exemplary for such formal processes. The Law of Property Act 19255 sets
the transaction for the creation and disposition of an interest in the land that must be by a deed and
completed by registration at the Land registry department. Similarly, Stock Transfer Act 19636 and
Companies Act 19857 sets out the mandatory need of a memorandum of transfer along with
registration of shares for a private limited company. Likewise, a compliance with the electronic
system is a must for the public limited company that results in the adequacy of correct information.
Notably, it is sufficient to transfer absolute title as a gift in a chattel without any formal
requirements which can also be made by deed. However, for a non-chattel like land, it cannot be
gifted and hence requires a formal requirements to transfer a legal title in case of land.
In case of an ineffective transfer of legal title, it might be possible for Equity to complete the gift as
the legal owner holds the property on trust for the recipient that was held in the case of Oughtred v
Inland Revenue Commissioners8. But the general rule as stated in Pennington v Waine9 is that equity
will not be applicable as a perfect or imperfect gift in such case and the court will rarely blur the
distinction between the gifts and trust. It can be clearly seen that the maxim is undermined in
Pennington as the equity will not support a volunteer by perfecting the imperfect gifts.
In the leading case of Milroy, upon trust for Milroy's benefit, Thomas Medley assigned 50 shares by
voluntary deed to Samuel Lord. Nevertheless, following the formalities of transferring shares, no
such registration for the transfer of shares were made. Due to the failure of implementing the
requisite formalities, the trust was incompletely constituted as a consequence of it. This case was
later applied in the case of, Richard v Delbridge10, where it was held that the gift was imperfect and
could not be enforced as the legal title for the leasehold property was not transferred by deed. As
demonstrated in Milroy v Lord and Richards v Delbridge, unless the beneficiary/ donee has furnished
consideration, it is not possible for him or her to enforce the trust against the trustee/ donor,
particularly in case of equity where no vesting has occurred.11 Therefore, maxims that are applicable
in case of incomplete gifts are:
1. Equity will not aid a volunteer and
2. Equity will not perfect an imperfect gift.12
However, under certain circumstances to ameliorate its strictness, court might depart from
the general rule in Milroy, as once stated by Lord Browne -Wilkinson that although equity will not
5 Kelly, R., & Hatfield, E. (2017). Land Law: A Problem-based Approach. Routledge.
6 Yeowart, G., Parsons, R., Murray, E., & Patrick, H. (2016). Yeowart and Parsons on the Law of Financial
Collateral. Edward Elgar Publishing.
7 Pikis, G. M. (2016). An Analysis of the English Common Law, Principles of Equity and Their Application in a
Former British Colony, Cyprus. Brill.
8 Oughtred v Inland Revenue Commisioners
9 Penner, J. (2016). The law of trusts. Oxford University Press.
10 Smith, L. (2017). Massively Discretionary Trusts. Current Legal Problems, 70(1), 17-54.
11 Virgo, G. (2018). The Principles of Equity & Trusts. Oxford University Press.
12 Ramjohn, M. (2017). Unlocking equity and trusts. Routledge.