Exploring the Ambiguity in Trust and Certainty in Declaration of Trust

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Every ambiguity in trust and Certainty is an opportunity to explore a new tangent?
Introduction
“The declaration of the trust” is not as simple as it seems. Every time a “vote of trust” or a
“statement of a trust” appears on a legal paper, it is an outcome of elaborated discussions
among the concerned parties. Many scholars clearly say that trust is not magic; it is a
declaration that fulfills the conditions of the three certainties. Under a landmark judgment
delivered in the case of Knight v Knight (1840) 3 (Beav 17)1 the court of the law clearly states
that no "declaration of the trust" cannot be acknowledged unless it is fulfilling the three
certainties prescribed by under the books.
These three certainties are the “certainties of words or intentions”, “certainty of the subject”
and “certainty of the object”. On most of the occasions when we check the disputes related to
the “declaration of the trust” then we find that ambiguity in fulfilling any of the “three
certainties” emerges as one of the reasons behind the cause of dispute or dissatisfaction
among the parties. A legal history of British and Welsh law is full of such examples where
they exempted these cardinal rules under extraordinary circumstances. However, most of
such actions became a regular norm for the future courses of the courtrooms listening to such
cases2
This general practice gives rise to the hypothesis that says that the framework surrounding the
“three uncertainties” is ambiguous in nature. It gives rise to conflicting and confusing
1Graham Moffat, Trusts Law, (Cambridge University Press, 1994), 116
2 Mohammad Ramjohn, Cases & Materials on Trusts (Psychology Press, 2004), 78
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authorities and brings the law to a point where it becomes unclear and fails in describing any
applications of the clause of trust and certainty3.
In the current essay, we will explore the truth of this hypothesis with the help of some
examples set by the landmark judgments and conflicts set by the cases and dispute that
appeared in the periphery of English and Welsh Law. Under this essay, we will touch various
issues that can be considered as the subheads of the three certainties and corresponds with the
issue of equity and trust at a social level. The study of the trust under a social framework is
necessary for many regards. It is true that many issues and tangents related to the fixation of
the certainties associated with the "statement of trust" are unclear; however, they cannot be
ignored because the obscurities of present-day systems are bound to form the legal maxims of
the tomorrow 4
Most of these issues are connected with the ambiguity of the “statements” or the “confusing
authorities” existing inside an “agreement or an arrangement” between the two parties.
Before we delve into the legal and historical aspects of the “Trust” from an academic point of
view, it is poignant to supply a fact that on most of the occasions Individuals and
organizations sign contracts on the merit of “good faith among the partners”. In the realms of
the social setups, we can term these partners as the direct and indirect stakeholders from the
tapestry of a social framework. The introduction of the direct and indirect stakeholders under
the framework of the “legal trust” and ” three certainties” forming the crux of the “trust
depicted” in an “agreement or arrangement” is important from the point of view of the social
3 Anne Street, Equity & Trusts Concentrate: Law Revision and Study Guide, (Oxford
Publishing House, 1998), 93.
4 Warren Barr. The Law of Trusts and Equitable Obligations (Oxford University Press,
2010), 88,
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equity. “There is no magic in the word trust,” the case history of (Kinloch v Secretary of State
for India (1882) 7 App Cas 619, Tito v Waddell (No.2) [1977] Ch 106, Re Kayford Ltd [1975]
1 WLR 279) defines the word trust in a harsh manner because in the said case the
“declaration of the trust was overburdened with some arguments facilitating trust as a symbol
of a universal truth.5 The legal definition of the “declaration of the trust” under the purview of
the court matters and court decisions falling under the Jurisdiction of English and Welsh laws
clearly gives us an impression that “ascertaining of the right value of the three certainties”
ensures a fair justice for the unheard stakeholders of the society and serves the concept of the
social equity for the greater interest of the society6.
A positive criticism of laws keeps it contemporary and apt for the changing times
Why we need laws to regulate the affairs of society. Why every time we need to change a few
things in the existing laws to make them fit for the next generations. The answer to this
question can be vast, however, when we try to find out an answer to the same question in the
field of Social Equity and trust then we find that primarily it is the breach of the "good faith"
among the individuals and the fractions of the society that forces us to write laws to ensure a
smooth functioning of the society7. The differentiation of the opinion related to the
identification of the intention in a lawsuit was addressed by the judgement delivered in the
case Shelley v Shelley (1868) where the verdict clearly mentioned that the rules of the law and
5 Rosalind Kidd, Trustees on Trial: Recovering the Stolen Wages, (Aboriginal Studies Press,
2006),116.
6 Michael Levenstein, Maxims of Equity: A Juridical Critique of the Ethics of Chancery Law,
( Algora Publishing, 2014),108.
7 Robert A Pearce, Equity & Trusts Concentrate: Law Revision and Study Guide, (Oxford
University Press, 2015)66.
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