Certainty of intention, subject matter and objects

An express trust is

A trust made by deed, will or orally/from the circumstances — Moore v Williamson [2011]

An express trust is valid if

1. The settlor has the capacity to make a trust

2. There is certainty of intention, subject matter and objects

3. It complies with formalities

4. It is properly constituted

A settlor has capacity to make a trust if

1. They are aged 18 or over — Edwards v Carter [1893]

2. They are mentally competent — Re Bearney [1978]

There must be certainty of intention, subject matter and objects

Knight v Knight [1840]

The words ‘on trust’ are not required

Re Kayford [1975]

‘To be at her disposal in any way she may think best’

Uncertain — Lambe v Earnes [1871]

‘In full confidence that she will do what is right as to the disposal thereof’

Uncertain — Adams v Kensington Vestry [1884]

‘It is my desire that she allows to my daughter an annuity of’

Uncertain — Re Diggles [1888]

‘In full confidence that she will make such use of it as I should have made myself’

Uncertain — Comiskey v Bowring Hanbury [1905]

Depositing money from customers in a dedicated bank account named ‘Customer Trust Deposit Account’

Certain — Re Kayford [1975]

Separating club members’ funds from other club revenue but without any prerogative for their funds to be used solely for their benefit

Uncertain — Re Challoner Club Ltd [1997]

Depositing winnings from going to bingo together into a joint bank account

Certain — Paul v Constance [1977]

Not acting upon the trust, with the settlor retaining control of the property (sham trust)

Uncertain — Midland Bank Plc v Wyatt [1995]

‘A reasonable income from my other properties’

Certain — Re Golay’s Will Trusts [1965]

‘Such minimal part of my estate as she might be entitled to’

Anthony v Donges [1998]

Where the settlor has a stock of goods and purports to make a trust over a certain portion of the stock, the portion must be clearly identified and kept separate from the rest of the stock

Re London Wine Company [1986]

Where the settlor has multiple shares and purports to make a trust over a certain amount of shares, the amount must be clearly identified, but because shares are identical with no individual quirks, there is no need to separate them out

Hunter v Moss [1994]

‘My estate to my nephew, and if he dies without any children, the bulk of my said estate to be divided amongst …’

Uncertain — Palmer v Simmonds [1854]

‘My estate to my brother, and at his death, anything that is left to be divided amongst …’

Certain — Re Last [1958]

There is conceptual certainty if there is no inherent semantic ambiguity in the wording used to define the designated class of beneficiaries

O T Computers Ltd v First National Tricity Finance Ltd [2003] FIXED TRUST

There is evidential certainty if it is possible to draw up a list of who falls within the designated class of beneficiaries (the ‘complete list’ test)

IRC v Broadway Cottages [1955] FIXED TRUST

It must be possible to determine with certainty whether a given individual is or is not a member of the designated class of beneficiaries (the ‘is or is not’ test)

McPhail v Doulton [1971] DISCRETIONARY TRUST

If the designated class of beneficiaries is so large that it is unworkable (e.g. all the inhabitants of West Yorkshire) then the objects are uncertain

R v District Auditor ex p. West Yorkshire MC [1986] BOTH