Trust Law: Three Uncertainties

This article discusses the three uncertainties in trust law - certainty of intention, certainty of subject matter, and certainty of objects. It explains the importance of these uncertainties in creating a valid express trust and provides examples and case references. The article also explores the different forms of trusts and their relevance in trust law.

Trust Law:
Three Uncertainties

Table of Contents
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
Certainty of intention..............................................................................................................1
Certainty of subject matter.....................................................................................................2
Certainty of objects.................................................................................................................2
CONCLUSION................................................................................................................................2
REFERENCES................................................................................................................................3

INTRODUCTION
A trust is acknowledged to be a three party fiduciary relation whereby the first party named the
settlor or trustor transfers a property onto the second person for the benefit of a third individual
referred to as the beneficiary (Morley and Sitkoff, 2019). A testamentary trust is developed via a
will and emerges right after the death of the trustor. The present project takes into account 4
dispositions and checking out their validity by applying the trust law along with the three
certainties that are essential for an express contract to become valid.
MAIN BODY
There are multiple forms of trust out of which the most widely used form is an express trust.
Within this type, fixed as well as discretionary trusts are pertinent. The fixed trust is an
arrangement whereby the trustees do not have the choice regarding the beneficiary or the share to
be received by them (Dernbach, 2020). On the contrary, a discretionary trust is the one whereby
the trust property is disseminated as deemed fit, however it is essential that it is distributed and
not kept with them.
In this relation, it is acknowledged that an express trust can be valid only in the presence of three
certainties. These are identified to be certainty of intention, certainty of subject matter, and
certainty of objects (Radigan and Hillman, 2017). In the absence of any or all of these
certainties, an express form of trust cannot be said to be valid. The sole purpose linked with such
certainties is ensuring proper control and enforcement of the trust.
Certainty of intention
The key test to check whether intention is present is to take into consideration whether or not the
creator of the trust needed an individual to be under a duty of holding property for the benefit of
other person. The court always takes a look upon the substance of the intent of creator to see if
they intended for requesting the trustees or imposing them to do something. The presence of
precatory words such as “requests”, “confident”, “wishes” reflects that it is a request. The
question of intention is examined in an objective manner, with regards to the opinion held by a
reasonable individual (Caticha and Alves, 2019). In an instance of absence of certainty of intent
for creation of a trust, there would be no valid declaration of trust.
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Certainty of subject matter
Trusts can be declared over all kinds of property, including intangible property such as covenants
or debts. However, the subject matter must be clearly defined in the trust instrument (Chang,
Chen and Wu, 2017). This is a question of fact. If the creator has described the property as the
‘bulk’ of something, Palmer v Simmonds [1854] 2 Drew 221 said this was not sufficient to
constitute a certain subject matter. This is because ‘bulk’ cannot be defined. However, according
to the decision in Re Last [1958] P 137, ‘anything that is left’ of the testator’s estate was held to
be sufficiently clear (Dernbach, 2020). In case the certainty of subject matter is absent, the
repercussions would depend over the sort of uncertainty. In case the identity of trust property is
acknowledged to be uncertain, the trust cannot be affixed towards a property (Hollo, 2019).
Thus, if a part of property has to be upheld upon trust for the beneficiary and the identity is
recognized to be uncertain, then the trustee would absolutely attain the property. Yet if it is found
to be failing in terms of uncertainty in the manner in which the property is segregated amidst the
beneficiary, a resultant trust tends to emerge as it is quite evident that the trust’s creator was not
intending to provide the property to trustee outright (Ong, 2018).
Certainty of objects
It is important that object must be certain within the trust. In the absence of certainty of objects,
the trustee would be holding the property upon the trust for trustor – it is a resultant trust. It
implies that the settler holds the right to demand back the legal title from trustee and thereby
create another trust which is valid (Emens, 2020).
On the basis of above discussion, it can be said that (a) and (c) are invalid dispositions while (b)
and (d) are valid as per the trust law and its provisions (the three certainties).
CONCLUSION
On the basis of above discussion, it can be inferred that trust is a fiduciary relation that exists
between three parties whereby one person transfers property to another for the benefit of third
person. Beside this, it has been ascertained that for the validity of an express trust, there must be
3 certainties named certainty of intention, certainty of subject matter, and certainty of objects.
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REFERENCES
Books and Journals
Morley, J. and Sitkoff, R.H., 2019. Trust Law: Private Ordering and the Branching of American
Trust Law.
Dernbach, J.C., 2020. The Role of Trust Law Principles in Defining Public Trust Duties for
Natural Resources. University of Michigan Journal of Law Reform, 54.
Caticha, N. and Alves, F., 2019. Trust, law and ideology in a NN agent model of the US
Appellate Courts. In Proc. of the European Symposium on Artificial Neural Networks
(ESANN 2019), i6doc. com, this volume.
Hollo, E.J., 2019. Property and Trust Law in Finland. Kluwer Law International BV.
Ong, D., 2018. Trust law in Australia. Federation Press.
Emens, E.F., 2020. On Trust, Law, and Expecting the Worst.
Chang, Y.C., Chen, W. and Wu, Y.C., 2017. Property and trust law in Taiwan. Kluwer Law
International BV.
Dernbach, J.C., 2020. The Role of Trust Law Principles in Defining Public Trust Duties for
Natural Resources. University of Michigan Journal of Law Reform, 54.
Radigan, C.R. and Hillman, J.F., 2017. A Comment on Modernizing New York Trust
Law. ACTEC LJ, 43, p.311.
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