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Three certainties

The three certainties are the foundational requirements for establishing a valid express trust under English equity law, encompassing certainty of intention, certainty of subject matter, and certainty of objects.^[1] These principles ensure that a trust is enforceable and binding, preventing ambiguities that could lead to failure of the arrangement.^[2] They were first systematically articulated by Lord Langdale MR in the seminal case of Knight v Knight (1840) 3 Beav 148, where the court held that precatory words in a will were insufficient to create a trust due to lack of certainty.^[1]^[2] Certainty of intention requires that the settlor clearly manifests an imperative obligation on the trustee to hold and manage the property for the benefit of others, rather than expressing mere hopes, desires, or moral instructions.^[3] Courts examine the settlor's words and conduct to determine this intent, as seen in cases like Re Walker (1925), where precatory language was deemed inadequate to impose fiduciary duties.^[3]^[4] Without this certainty, an arrangement may be interpreted as an outright gift or non-binding recommendation, rendering it invalid as a trust.^[1] Certainty of subject matter demands that the trust property be precisely identifiable, allowing the court to ascertain exactly what assets are subject to the trust and the extent of beneficiaries' interests therein.^[3] Vague descriptions, such as "a portion of my estate" or unquantified shares, fail this test, as illustrated in Sprange v Barnard (1789), where residue in a box was too uncertain to enforce.^[3] This requirement promotes segregation of trust assets and prevents disputes over what constitutes the trust fund.^[2] Certainty of objects necessitates that the beneficiaries (or purposes, in charitable trusts) be sufficiently defined so that the court can identify who is entitled to benefit.^[3] For fixed trusts, a complete list of beneficiaries must be ascertainable (IRC v Broadway Cottages Trust Ch 20), while discretionary trusts require conceptual certainty under the "is or is not" test from McPhail v Doulton AC 424, ensuring the class is conceptually workable without needing an exhaustive list.^[1]^[3] This principle upholds the beneficiary principle, guaranteeing enforceable rights against the trustee.^[2]

Foundations

Historical Development

The doctrine of the three certainties in trust law traces its origins to the early 19th century, particularly in the case of Wright v Atkyns (1823) Turn & R 143, where Lord Eldon LC articulated the foundational requirements for a valid express trust by stressing that the words used must be imperative to demonstrate intention, the subject matter must be clearly defined, and the objects must be ascertainable. This emphasis on clarity aimed to distinguish binding trusts from mere moral obligations or precatory expressions, setting a precedent for judicial scrutiny of trust instruments.^[5] The principle was formally crystallized in Knight v Knight (1840) 3 Beav 148, where Lord Langdale MR explicitly enumerated the three certainties—intention, subject matter, and objects—as indispensable elements for the creation of an express private trust, declaring that without them, "the trust must fail."^[6] This formulation provided a structured test that became the cornerstone of equity's approach to trust validity, influencing subsequent jurisprudence by prioritizing precision to ensure enforceability and prevent ambiguity in property dispositions. In the early 20th century, judicial interpretations began to refine these requirements, as seen in Re Hamilton 2 Ch 370, where Lindley LJ advocated a contextual approach to construing documents, urging courts to interpret the settlor's words in their entirety rather than rigidly applying precedents, thereby shifting toward a more flexible stance that favored upholding trusts when possible. This evolution reflected equity's inherent benevolence, allowing for reasonable inferences of intention and subject matter to avoid invalidating arrangements on technical grounds.^[7] Following the 1950s, a broader trend emerged in English courts toward greater liberality in applying the three certainties, influenced by evolving equity principles that prioritized the settlor's presumed intent and the policy of effectuating valid dispositions over strict formalism.^[6] Cases such as Re Golay's Will Trusts 1 WLR 969 exemplified this by permitting courts to imply reasonable standards for uncertain benefits, underscoring a judicial preference for validity that aligned with modern trust planning's complexities.^[6]

Purpose and General Principles

The three certainties—certainty of intention, certainty of subject matter, and certainty of objects—form the doctrinal cornerstone for validating express trusts in English equity law, as articulated by Lord Langdale MR in Knight v Knight (1840) 3 Beav 148. These requirements mandate that a settlor's disposition clearly demonstrates an imperative intent to create a trust, identifies the precise property subject to it, and specifies the beneficiaries or purposes with sufficient definiteness. Without these elements, courts cannot assume supervisory control, rendering the arrangement unenforceable.^[8] The overarching purpose of the three certainties is to safeguard against vague or ambiguous dispositions that risk administrative difficulties, inter-party disputes, or deviation from the settlor's objectives, thereby ensuring trustees can discharge their fiduciary duties with precision and beneficiaries can assert their entitlements without uncertainty. This framework upholds equity's commitment to effectuating the settlor's will while enabling judicial intervention to prevent mismanagement or incomplete obligations.^[6]^[9] Central to their application is the principle of interdependence: satisfaction of two certainties cannot compensate for failure in the third, as any ambiguity invalidates the trust entirely, reflecting equity's rigorous demand for comprehensive clarity to promote settlor intent and trust efficacy. This holistic approach distinguishes the certainties from ancillary requirements like formalities (e.g., writing for dispositions of land under s 53 Law of Property Act 1925) and constitution (the effective vesting of property in trustees), which address procedural validity rather than substantive precision; a trust may satisfy the certainties yet fail for non-compliance with these elements.^[6]^[10]

Certainty of Intention

Core Requirements

The certainty of intention is a foundational requirement for the creation of a valid express trust, mandating that the settlor evince a clear and imperative intention to impose binding legal obligations on the trustees to manage the trust property for the benefit of the beneficiaries, rather than merely expressing a moral, precatory, or advisory wish. This distinction ensures that the arrangement is enforceable in equity as a trust, distinguishing it from gifts, contracts, or non-binding recommendations.^[9] Precatory words, such as those conveying hope or confidence (e.g., "I hope you will"), generally fail to create a trust unless the surrounding context elevates them to an obligatory level. No specific wording or technical terminology, such as the word "trust," is required to satisfy this certainty; instead, the courts examine the entirety of the settlor's words, actions, and the relevant circumstances to discern the true intent.^[9] For example, a phrase like "in full confidence that you will use this for the benefit of X" may suffice if the context clearly indicates an expectation of enforceable performance, rather than mere persuasion. The absence of such imperative force, however, renders the arrangement invalid as a trust. Courts apply an objective test to evaluate certainty of intention, asking what a reasonable person would understand the settlor's words and conduct to mean in the given context, rather than probing the settlor's subjective state of mind. Illustrative examples include a declaration such as "I hold this property for you," which typically demonstrates the requisite intention to establish a trust by acknowledging a fiduciary duty, in contrast to a simple statement like "I give you this property," which conveys an absolute gift without ongoing obligations.^[9]

Judicial Tests and Evolution

The judicial approach to certainty of intention has evolved from a strict interpretation requiring explicit mandatory language to a more liberal, context-driven assessment that favors upholding trusts where possible. In the late 19th century, courts adopted a rigorous stance, insisting on clear and imperative words to establish a trust, as vague or precatory expressions were insufficient. For instance, in Re Hamilton 2 Ch 370, the Court of Appeal ruled that a testatrix's bequest to her sister "in full confidence that she will do what is right as to the disposal thereof between my children" did not create a trust, viewing the language as merely expressive of hope rather than obligation, thus causing the property to pass absolutely to the sister. This early strictness began to give way in the mid-20th century to a pro-validity trend, where judges increasingly looked beyond formal wording to the settlor's overall conduct and circumstances to infer intent. A pivotal shift occurred from the 1950s onward, with courts emphasizing practical evidence over rigid formalism to prevent trusts from failing on technical grounds.^[11] By the 1970s, this liberal test was firmly established, allowing trusts to be declared even without explicit terms like "trust," provided actions demonstrated the requisite intention. In Re Kayford Ltd 1 WLR 279, Megarry J upheld a trust over customer prepayments segregated into a separate "deposit account" amid the company's insolvency fears, reasoning that the segregation itself evidenced an intention to hold the funds on trust for customers rather than for general creditors, despite no formal declaration.^[12] Similarly, in Paul v Constance 1 WLR 527, the Court of Appeal found an express trust over a joint bank account based on the deceased's repeated informal assurances to his partner—"This money is as much yours as mine"—coupled with their shared withdrawals and deposits, holding that such words and conduct unequivocally manifested trust intent without needing precise legal phrasing.^[13] This evolution culminated in a reinforced objective approach in Byrnes v Kendle HCA 26, where the High Court of Australia clarified that intention is ascertained from the ordinary meaning of the words in their documentary and factual context, disregarding uncommunicated subjective beliefs, thereby promoting validity by avoiding overly speculative inquiries into the settlor's mind. Although an Australian decision, it has influenced UK jurisprudence by underscoring a contextual, pro-validity interpretation that aligns with the post-1950s UK trend of inferring intent from conduct to sustain trusts against linguistic ambiguities. Overall, these developments have significantly reduced trust failures attributable to wording alone, prioritizing substance over form in line with equity's remedial ethos.

Certainty of Subject Matter

Defining the Trust Property

The certainty of subject matter requires that the trust property be clearly defined and identifiable, enabling trustees to ascertain and administer it without ambiguity, as this ensures the trust's enforceability by the court.^[9] For a valid trust, the property must be specific and segregated from the settlor's general assets, distinguishing it from non-trust property to prevent disputes over ownership or management.^[10] For instance, a declaration such as "£100 in my safe" identifies a precise, segregated sum, whereas a vague reference like "part of my money" fails due to lack of specificity, rendering the trust invalid.^[14] Conceptual certainty demands that the description of the property allows for its precise identification, avoiding imprecise or ambiguous terms that could lead to uncertainty in application. Terms like "the bulk of my estate" have been held insufficient, as they do not delineate the exact boundaries of the trust property, making enforcement impossible.^[15] In Palmer v Simmonds (1854) 2 Drew 221, a testamentary gift of "the bulk of my said residuary estate" was deemed void for conceptual uncertainty, as the court could not determine the precise extent of the subject matter. Quantitative certainty further requires that the amount or portion of the property be exact or calculable, ensuring trustees can fulfill their duties without guesswork. While an absolute sum, such as a fixed monetary amount, satisfies this, a percentage of a clearly defined whole—provided the whole is ascertainable—may also suffice, as it allows for objective quantification.^[10] This requirement is illustrated in Re Goldcorp Exchange Ltd 2 All ER 806, where customers' claims to unallocated bullion stored in a common pool failed, as the lack of segregation and specific identification meant no distinct trust property existed, invalidating the purported trusts over the metals.^[16] The Privy Council's decision emphasized that even homogeneous chattels require physical or conceptual separation to meet the certainty threshold.

Exceptions and Special Cases

In Hunter v Moss 1 WLR 452, the English Court of Appeal ruled that a declaration of trust over an unspecified portion of fungible intangible assets—such as 50 shares out of 1,000 identical shares in a private company—satisfies the certainty of subject matter without requiring the segregation or identification of specific units.^[17] This departed from the traditional strict segregation principle for trust property, recognizing that identical intangibles like shares confer equivalent rights regardless of which particular units are allocated.^[18] The rationale for this exception rests on the practicality of dealing with homogeneous assets, where physical division would serve no beneficial purpose; instead, the beneficiary receives a proportionate equitable interest in the entire holding, enforceable against the trustee.^[17] This approach avoids unnecessary administrative burdens while preserving the trust's validity, as the subject matter remains ascertainable from the overall pool.^[18] However, the exception is narrowly confined to fungible intangibles and does not extend to tangible property or unique assets, where identification remains essential to avoid uncertainty.^[17] In Re Harvard Securities Ltd (in liquidation) 2 BCLC 369, the High Court clarified these limits, holding that purported trusts over client shares failed because the assets were unallocated and commingled without a defined pool, rendering the subject matter unascertainable despite their intangible nature.^[19] The decision emphasized that Hunter v Moss applies only where a clear, identifiable bulk exists from which proportional interests can be drawn, distinguishing cases of total non-allocation.^[19] The Hunter v Moss principle has implications for modern financial instruments, including digital assets treated as fungible intangibles, allowing undivided equitable interests without segregation in appropriate pooled arrangements, reinforced by the Property (Digital Assets etc) Bill [HL] (2024-26), which confirms that digital assets are capable of being personal property, thereby supporting their inclusion in trusts subject to identification requirements.^[20]^[21]

Certainty of Objects

Fixed vs. Discretionary Trusts

In fixed trusts, the beneficiaries are entitled to specific, predetermined shares of the trust property, such as distributing "£10,000 to A and £5,000 to B".^[9] To satisfy the certainty of objects, trustees must be able to compile a complete and exhaustive list of all beneficiaries, ensuring that the exact entitlements can be identified and enforced without ambiguity.^[22] Discretionary trusts, by contrast, grant trustees the authority to determine both the beneficiaries and the proportions of the trust property to be distributed among a defined class, as in a provision directing income "to my children as the trustees see fit".^[9] This structure accommodates broader descriptions of the beneficiary class, as the trustees' discretion obviates the need for immediate, precise allocation of shares.^[9] The Court of Appeal in Inland Revenue Commissioners v Broadway Cottages Trust Ch 20 articulated the "list certainty" requirement specifically for fixed trusts, holding that trustees must ascertain the full extent of the beneficiary class to divide the property according to fixed entitlements; failure to do so renders the trust invalid for uncertainty of objects.^[22] In that case, involving a trust for the employees (current and former) of the company and their relatives and dependants, the inability to produce such a list invalidated the arrangement.^[22] This distinction profoundly affects the application of certainty of objects: fixed trusts demand rigorous precision to facilitate equitable and enforceable divisions, whereas discretionary trusts permit greater conceptual latitude to support administrative flexibility in beneficiary selection and distribution.^[9]

Applicable Tests for Beneficiaries

The determination of certainty of objects in trusts hinges on the type of trust involved, with distinct tests applied to fixed trusts and discretionary trusts to ensure beneficiaries can be sufficiently identified. In fixed trusts, where beneficiaries hold predetermined shares of the trust property, the complete list test applies, requiring that the class of beneficiaries be both conceptually certain—meaning the description allows for clear definition—and evidentially certain, such that a complete list of all potential beneficiaries can be compiled at the time of distribution. This rigorous standard ensures trustees can distribute the property without ambiguity, as established in the seminal case of Inland Revenue Commissioners v Broadway Cottages Trust Ch 20, where the court held a trust invalid because the composite class of employees (serving or having served), their relatives, and dependants was too uncertain to compile such a list.^[23] For discretionary trusts, where trustees have latitude in selecting beneficiaries and allocating benefits, a more flexible approach governs to avoid unduly restricting settlors' intentions. The House of Lords in McPhail v Doulton AC 424 replaced the stricter complete list test with the "any given postulant" test, under which conceptual certainty suffices if, for any potential claimant, it can be said with certainty whether they are or are not within the class of beneficiaries. This criterion-focused approach, articulated by Lord Wilberforce, promotes practicality by emphasizing definable boundaries over exhaustive enumeration, thereby validating trusts with broader classes as long as membership is ascertainable on an individual basis.^[24] Building on this, the earlier decision in Re Gulbenkian's Settlement Trusts AC 508 clarified the requirements for conceptual certainty in powers of appointment, which inform discretionary trust analysis, holding that class descriptions must have precise boundaries to avoid vagueness. For instance, terms like "children" or "relatives" provide clear inclusion criteria, whereas subjective phrases such as "best friends" fail due to their indeterminacy, rendering the power or trust invalid. The House of Lords emphasized that trustees must be able to exercise their discretion without undue speculation about class membership.^[25] Even where conceptual certainty is met under the any given postulant test, discretionary trusts may still fail if the beneficiary class is administratively unworkable, a doctrine introduced post-McPhail v Doulton to address excessively broad or impractical classes. In R v District Auditor, ex parte West Yorkshire Metropolitan County Council RVR 24, the Court of Appeal invalidated a trust for the benefit of "any or all of the inhabitants of West Yorkshire" (approximately 1.54 million people, as of 1986), ruling that while conceptually certain, the scale rendered administration impossible, as trustees could not feasibly survey or distribute benefits equitably. This addition, drawn from Lord Wilberforce's observations in McPhail, underscores that unworkability defeats the trust's purpose without requiring evidential uncertainty.^[26]

Dealing with Uncertainties

Identifying Types of Uncertainty

In trusts law, uncertainties can arise across the three certainties—intention, subject matter, and objects—potentially rendering a trust invalid if they prevent the court from enforcing it effectively. These uncertainties are categorized into distinct types to assess whether the settlor's intentions can be discerned and implemented. The primary types include conceptual, evidential, ascertainability, and administrative unworkability, each impacting the validity in specific ways. Conceptual uncertainty occurs when the terms used to describe the trust property or beneficiaries are inherently vague or ambiguous, making it impossible for the court to define the scope with legal precision. This type of uncertainty, sometimes referred to as semantic or linguistic uncertainty, strikes at the core meaning of the provision itself. For instance, in the context of certainty of subject matter, a direction to provide "reasonable income" from trust assets lacks sufficient clarity to determine the exact quantum or allocation, as "reasonable" is subjective and undefined.^[27] Similarly, for certainty of objects, describing beneficiaries as "friends" without further boundaries introduces vagueness, as the term defies objective delineation and could encompass an indeterminate range of relationships.^[28] Conceptual uncertainty typically invalidates a trust because it prevents ascertainment of the class or property, as affirmed in cases where vague descriptors fail the "is or is not" test for membership.^[29] Evidential uncertainty, in contrast, arises not from ambiguity in the language but from practical difficulties in proving or compiling the full list of potential beneficiaries or property details, assuming the definition is conceptually clear. This form allows for the trust's validity if extrinsic evidence can resolve the evidential gaps, though it may complicate administration. An example is a beneficiary class defined as "all employees" of a large multinational corporation, where the conceptual meaning is precise but gathering comprehensive membership data is infeasible due to scale.^[27] The distinction between semantic (conceptual) and evidential uncertainty was clarified in Re Tuck's Settlement Trusts Ch 87, where the Court of Appeal emphasized that evidential issues involve factual proof rather than interpretive vagueness, and provisions appointing an independent arbiter (e.g., the Chief Rabbi to approve a beneficiary's eligibility) can mitigate such concerns without invalidating the trust.^[30] Ascertainability issues pertain to situations where the beneficiaries cannot be identified or located at the time of the trust's creation or when distribution is required, particularly in fixed trusts where a complete list must be possible. This uncertainty affects certainty of objects by rendering enforcement impractical if potential beneficiaries, such as future unborn persons, cannot be reliably determined in advance. For fixed trusts, the class must be closed or ascertainable upon vesting, as open-ended future interests risk failure if identification remains impossible.^[28] Administrative unworkability represents a separate ground of invalidity, where even if conceptual and evidential certainties are satisfied, the beneficiary class or trust terms are so excessively broad that trustees cannot practically administer the trust as a coherent whole. This doctrine ensures that trusts function as identifiable schemes rather than amorphous powers. In McPhail v Doulton AC 424, Lord Wilberforce articulated this as arising when the definition of beneficiaries is "hopelessly wide as not to form anything like a class," exemplified by a discretionary trust over employees of a vast organization like the National Coal Board, where the sheer size (potentially millions) defeats workable distribution. Such unworkability invalidates discretionary trusts but does not apply to powers of appointment, highlighting its targeted impact on enforceable obligations.^[31]

Resolution Strategies

When uncertainties arise in the creation of a trust, particularly regarding the three certainties, courts and trustees employ several strategies to resolve or mitigate them, ensuring the trust can be administered effectively where possible. One key method involves the admission of expert evidence to clarify ambiguous or vague terms that might otherwise lead to conceptual uncertainty. In Re Tuck's Settlement Trusts 2 WLR 411, the Court of Appeal upheld the validity of a trust clause conditioning benefits on beneficiaries being of the Jewish faith and marrying within that faith, ruling that the Chief Rabbi could serve as an expert to determine compliance, thereby curing potential uncertainty in the objects of the trust.^[30] This approach is particularly useful for evidential uncertainties, where the terms are conceptually clear but factual application requires specialized knowledge. In discretionary trusts, trustees are empowered with broad discretion to interpret the beneficiary class and allocate benefits, which helps address practical uncertainties without voiding the trust. As long as the class is defined with conceptual certainty—meaning trustees can ascertain whether any given individual falls within it—they may exercise judgment to resolve borderline cases or evidential gaps in eligibility.^[28] This trustee autonomy promotes flexibility, allowing the trust to function despite minor ambiguities that do not undermine the overall scheme. For situations where the beneficiary class is administratively unworkable, such as when potential members cannot be identified due to absence or disappearance, courts may grant Benjamin orders to facilitate distribution. Originating from Re Benjamin 1 Ch 723, these orders permit trustees to distribute trust property on specified assumptions, like presuming a missing beneficiary is deceased, thereby avoiding indefinite postponement.^[32] Such judicial intervention protects the trust's purpose while indemnifying trustees against future claims. If these strategies fail and uncertainty renders the express trust invalid, the default position is that a resulting trust arises, causing the property to revert to the settlor (or their estate) for absolute beneficial ownership.^[33] Additionally, legislative provisions offer practical support; under section 57 of the Trustee Act 1925, courts may authorize dealings with trust property, including directions for valuation or apportionment to establish certainty of subject matter where the property description is imprecise but salvageable.^[34]

Contemporary Issues

Recent Judicial Developments

In Pensions Regulator v A Admin Ltd EWHC 1378 (Ch), the High Court declared several occupational pension schemes void for uncertainty, as the trust deeds failed to provide a clear method for calculating or distributing benefits to members, rendering the trusts unenforceable. The ruling underscored the need for "distributional certainty" in pension trusts, where beneficiaries' entitlements must be ascertainable to satisfy the certainty of objects, distinguishing such schemes from standard discretionary trusts by emphasizing precise benefit computation to avoid administrative impossibility.^[6] A significant 2024 development arose in Nilsson v Cynberg EWHC 2164 (Ch), where the High Court affirmed that express trusts require strict adherence to the three certainties for validity, but a subsequent common intention constructive trust could supersede an earlier express declaration without formal writing or the same certainties. This case, involving a HMRC appeal over beneficial ownership of a property purchased jointly, clarified that equity may impose constructive trusts to reflect parties' intentions and prevent unjust enrichment, even overriding express trusts formed at acquisition, provided evidence supports the common intention.^[35] The decision highlights the flexibility of constructive trusts in family and property contexts, while reinforcing the foundational role of the three certainties in express trusts.^[36] Regarding digital assets, UK courts have increasingly applied the three certainties to cryptocurrencies as trust property, focusing on certainty of subject matter through requirements like segregation to ensure identifiability. Although no landmark UK case has yet voided a trust solely for crypto-related uncertainty, analogies from decisions such as AA v Persons Unknown Category A EWHC 3556 (Comm) treat Bitcoin as proprietary, capable of being held on trust if distinctly allocated, drawing parallels to bulk intangible assets. This approach aligns with US trends, including bankruptcy cases like In re Celsius Network LLC (US Bankruptcy Court, 2023), where unsegregated crypto wallets led to commingling challenges, emphasizing the need for clear delineation to meet subject matter certainty.^[37] Legislative momentum, via the Property (Digital Assets etc) Bill introduced in 2024, further supports this by confirming certain crypto-tokens as personal property eligible for trust structures, provided they satisfy traditional certainty tests.^[38]

Criticisms and Proposed Reforms

The doctrine of the three certainties has been criticized for its overly formalistic approach, which often frustrates the settlor's intent by invalidating trusts on technical grounds despite clear underlying objectives.^[6] This rigidity can lead to the failure of otherwise viable arrangements, as courts prioritize linguistic precision over practical outcomes, undermining the equitable flexibility that trust law seeks to provide.^[6] A particular point of contention is the administrative unworkability test for certainty of objects, introduced following McPhail v Doulton AC 424, which remains subjective and unpredictable in application.^[31] Courts assess whether a beneficiary class is "too numerous" or the trustees' task impractical without clear guidelines, resulting in inconsistent rulings that create uncertainty for settlors and trustees alike.^[31] This subjectivity exacerbates frustration of intent, as large-scale discretionary trusts—intended to promote broad economic or familial benefits—may be voided despite feasible administration via statutory tools like notice provisions under the Trustee Act 1925.^[31] To address these flaws, scholars have proposed recognizing a "fourth certainty" of distributional certainty, requiring explicit mechanisms for allocating trust property among beneficiaries to prevent voiding on sharing ambiguities.^[6] As argued by McFarlane and Stevens, this addition would better align the doctrine with settlor objectives by distinguishing distributional issues from subject-matter uncertainty, allowing targeted resolutions like judicial implication of shares in appropriate cases.^[6] It would also clarify the administrative unworkability concept, treating it as a manifestation of distributional flaws rather than a standalone barrier.^[6] Reform advocates call for statutory clarification to adapt the doctrine to modern contexts, including digital assets, where the Law Commission has recommended legislation confirming such assets as personal property capable of being held on trust, ensuring certainty of subject matter.^[39] This would resolve ambiguities in treating crypto-tokens or electronic holdings, preventing trust failures due to outdated property classifications.^[39] Similarly, there are proposals for statutory guidance on certainty of intention in informal trusts, such as those arising from digital communications, to reduce reliance on subjective judicial interpretation and better reflect contemporary settlor practices.^[40] The Trusts and Succession (Scotland) Act 2024, which codifies private purpose trusts, has prompted discussion of its influence on English law, potentially inspiring reforms to relax the beneficiary requirement under the three certainties for non-charitable purposes.^[41] By validating purpose trusts without human beneficiaries, the Act highlights the UK doctrine's limitations and suggests a model for statutory expansion to avoid invalidating innovative arrangements.^[41] Comparatively, Australian courts have adopted a softer approach to certainty of intention, as in Byrnes v Kendle HCA 26, emphasizing the objective meaning of the settlor's words in context without allowing unexpressed subjective intents to override formal declarations.^[42] This contrasts with the stricter English application, where linguistic formalism more readily voids trusts, underscoring calls for similar contextual flexibility in the UK to mitigate undue rigidity.^[42]

References

[1]
Knight v Knight (1840) 3 Beav 148 | LawTeacher.net
A private express trust must demonstrate the so-called 'three certainties' – only then will a court recognise the trust as binding in equity.
[2]
Knight v Knight [1840] - UOLLB
Jul 11, 2024 · Certainty of intention: There must be a clear intention to create a trust. · Certainty of subject matter: The assets constituting the trust must ...
[3]
The Three Certainties for Trust Creation - Shajani CPA
Jan 9, 2025 · The three certainties for trust creation are: certainty of intention, certainty of subject matter, and certainty of objects.
[4]
THE THREE CERTAINTIES REQUIRED TO DECLARE A TRUST
May 14, 2020 · This article argues certainty in trusts is better understood by recognising a fourth certainty: “distributional certainty”.
[5]
None
### Extracted Full Quote from Lord Langdale on the Three Certainties
[6]
Nature and classification of trusts—the three certainties - LexisNexis
Aug 19, 2025 · These certainties—intention, subject matter, and beneficiaries—serve as the legal foundation to ensure that a trust is enforceable and operates ...
[7]
[PDF] Trusts Law - The three certainties - Revise SQE
The three certainties are: Certainty of Intention, Certainty of Subject Matter, and Certainty of Objects. All three must be present for a valid trust.
[8]
REVIEW ARTICLE Trusts Law: A Song Without End? - jstor
We are informed that 'there must be certainty of intention . . . certainty of subject-matter . . . and certainty of objects ... so that the trust is ...
[9]
Re Kayford Ltd - vLex United Kingdom
The object of the arrangement was that if the company had to go into liquidation the moneys in the deposit account could and would be refunded to those ...
[10]
Paul v Constance | England and Wales Court of Appeal (Civil Division)
The trial judge found in favor of the Plaintiff, declaring an express trust and awarding her half the balance. The Defendant appealed, contesting whether an ...Factual And Procedural... · Arguments Of The Parties · Court's Reasoning And...
[11]
Certainty of Subject Matter - Trusts Law - Digestible Notes
In order for a trust to be formed, there must be certainty as to which property is, and which is not, covered by the trust.
[12]
[PDF] Palmer v Simmonds 2 Drewry 221, 61 ER 704 Report Date - trusts.it
Held, that this language did not describe the subject of gift with sufficient certainty to create a precatory trust. The will of Henrietta Rosco contained ...
[13]
Goldcorp Exchange Ltd & Ors v Liggett & Ors | [1994] 2 All ER 806
Company A, a retailer of precious metals, became hopelessly insolvent. Pursuant to a floating charge, Bank A appointed Receiver A and Receiver B on 11 July ...
[14]
Hunter v Moss | [1994] WLR 452 | Judgment | Law - CaseMine
The court applied the principle that certainty of subject matter is essential and found that the shares in MEL were sufficiently certain as trust property.
[15]
[PDF] H U N T E R -v- M O S S - trusts.it
Dec 21, 1993 · LORD JUSTICE DILLON: This is an appeal by the defendant in this action Mr Robert Joseph Moss against the order made by the learned judge Mr ...
[16]
Re Harvard Securities | [1997] 2 BCLC 369 | Judgment | Law
Australian law, as advised by a detailed report from Australian counsel, requires certainty of subject matter and does not recognize beneficial interests ...Arguments Of The Parties · Table Of Precedents Cited · Court's Reasoning And...
[17]
[PDF] Virtual property as trust assets and investments
The present state of the authorities on the requirement of certainty of subject matter in relation to shares of intangible assets is unsatisfactory. Hunter v ...
[18]
Inland Revenue v Broadway Cottages | [1954] EWCA Civ 4 | Judgment
Get free access to the complete judgment in Inland Revenue v Broadway Cottages on CaseMine ... Ch 20[1954] 3 WLR 438(1954) 33 ATC 305. ATTORNEY(S). MR GEOFFREY ...
[19]
IRC v Broadway Cottages [1955] Ch 20 - Lawprof
Key Point. This case formulated a 'complete list test' which states that discretionary trusts are valid only if it is possible to ascertain the identity of ...
[20]
Re Baden (No 1) McPhail v Doulton | [1970] UKHL 1 - CaseMine
The House found the “complete list” test “unfortunate and wrong.” It overruled that decision and held that the correct test for discretionary trusts is the same ...Arguments Of The Parties · Table Of Precedents Cited · Court's Reasoning And...
[21]
Re Gulbenkian's ST [1970] AC 508 - Lawprof
Key Point. The 'is or is not' test is applicable to the certainty of objects of powers. Facts. A settlement contained a power to appoint in favour of any ...
[22]
R v District Auditor ex p West Yorks MCC [1986] RVR 24 - Lawprof
Key Point. A trust with a class that is so hopelessly wide as to be administratively unworkable is void. Facts. A local authority resolved to create a trust ...
[23]
Conceptual and Evidential Certainty in Trusts - LawTeacher.net
Conceptual certainty is required to administer fixed and discretionary trusts but when it comes to evidential certainty there is a difference between the ...
[24]
Certainty of Objects - Digestible Notes
Certainty of objects: beneficiaries of a trust must be certain, otherwise the trust is void. Trusts must be enforceable, so there must be someone who can ...
[25]
[PDF] discretionary trusts: conceptual uncertainty and practical sense
The distinction between conceptual and evidential uncertainty has recently been relied upon as a test for validity of conditions precedent: Re Tuck's Settlement ...
[26]
Re Tuck's Settlement | [1978] 2 WLR 411 | Judgment | Law - CaseMine
It analysed the legal concepts of "conceptual uncertainty" (where the wording is inherently vague) and "evidential uncertainty" (where the wording is clear but ...Missing: semantic | Show results with:semantic
[27]
[PDF] Re-thinking administrative unworkability in discretionary trusts
This article seeks to explain the current doctrine of administrative unworkability as it applies to discretionary trusts in the context of English trust law ...
[28]
Benjamin orders and absent, unknown, or dilatory claimants to a ...
27 In Re Benjamin [1902] 1 Ch 723, the trustees were given liberty to distribute the testator's residuary estate on the basis that one of his sons, who had ...
[29]
[PDF] 'THE THREE CERTAINTIES' An express trust mus
An express trust requires certainty of intention, certainty of subject matter (trust property), and certainty of objects (beneficiaries and their interests).
[30]
Express trust can be overridden by unwritten constructive trust, says ...
Sep 30, 2024 · He ruled that a signed agreement in writing is not necessary to displace an earlier express declaration of trust regarding the beneficial ...
[31]
High Court Ruling in Nilsson v Cynberg sparks uncertainty over ...
Oct 7, 2024 · However, HMRC's agents appealed, arguing that an express trust, declared at the point of purchase, could not be displaced by a constructive ...
[32]
The third category conundrum: Digital assets as objects of personal ...
Sep 5, 2024 · The draft bill is intended to support the development of the English common law in recognising certain types of digital asset, as well as other assets.
[33]
Property (Digital Assets Etc.) Bill: factsheet - GOV.UK
May 13, 2025 · This short Bill clarifies that certain digital assets, such as crypto-tokens, can be recognised as property, even if they do not fit into the two traditional ...
[34]
Digital assets - Law Commission
The draft Bill confirms the existence of a “third category” of personal property rights, capable of accommodating certain digital assets including crypto-tokens ...Missing: statutory trust
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Certainty of Intention in an Express Trust | LawTeacher.net
Secondly there must be certainty of the subject matter. This requirement is to ensure that the trustee can identify the subject matter of the property.
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Private purpose trusts in England and Wales following the trusts and ...
Jun 20, 2025 · This article evaluates the legal treatment of private purpose trusts in England and Wales following the Trusts and Succession (Scotland) Act ...
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[PDF] Byrnes v Kendle - classic austlii
In Byrnes v Kendle, the High Court was invited to decide the relevance of subjective intention in determining whether an express trust has been created. It.