3 Certainties of Express Private Trusts

Express Private Trusts

3 Certainties (Knight v Knight)

i) Certainty of intention

e.g. intention to give a trust property on condition that he graduates with flying colours. The condition must be fulfilled.

1. Quah Eng Hock v Ang Hooi Kiam (2000) 5 CLJ 126

The court referred to the need for the words used to be clear and unequivocal and held that words indicating that the donor intended to divest himself or herself of the beneficial interest would be sufficient for the purpose.

2. Comiskey v Bowring-Hanbury (1905) AC 84

A legacy was left to a widow “in full confidence” that she would leave the property on her death to one or more of the testator’s nieces. The precatory (expressing a wish) words were in themselves ineffective to create a trust. This will, however, went on to declare  that “in default of any disposition by here thereof by her will, I hereby direct that all my estate and property acquired by her under my will shall at her death by equally divided among the surviving said nieces” 

Majority of the HL held that a trust had been created and on the death of the widow, the property would pass to the nieces as provided for in the will.

3. Re Adams and Kensington Vestry

The testator bequeathed property to his wife for the ‘absolute use of my wife’. Court held that there was no trust because the wordings made it more like an absolute gift.

ii) Subject matter = make it certain with details

Re Kolb’s Will Trust

A reference to stocks and shares ‘in the blue-chip category’ was insufficiently certain because the term ‘blue chip’, has no precise meaning. The trust failed for uncertainty of subject matter.

Re Golay’s Will Trust - where a direction to allow a beneficiary to "enjoy one of my flats during her lifetime and to receive a reasonable income from my other properties" was upheld as the trustees could select and decide the matters. This decision was criticized because ‘reasonable income’ may not be certain.

iii) Object = beneficiary

The object can be a person, or group, or animal, or a charitable association.