Introduction
A trust is a relationship in which one party called the trustor grants another party, trustee, the
legal right to hold title to money, property, or assets to benefit a beneficiary.1 In practice, trusts
have been viewed as an easier and less costly manner of bequeathing wealth and safeguarding
the trustor’s properties. They reduce the legal processes as well as estate taxes since they create
fiduciary relationships between the trustor and the trustees.2
The law on trusts as is today is attributable to the locus classicus case of Knight vs. Knight3
which affirmed the requirement for the three certainties; the certainty of intention, the certainty
of the object, and the certainty of the subject matter. The ruling was that absent any of these
three certainties, a trust would fail, and a Court would instead find an absolute gift. Over time,
the law of trusts has developed to give each of the Certainties a detailed framework.4 This will be
used in the next three sections.
(A)
The value of the estate given in trust to Benny is £500,000. According to the facts, the trustor
hopes that the trustee will do what is right by using it to benefit the trustor's two children named
expressly and using any accrued interest to benefit the trustor’s named sister.
Issues
1 James Penner, The Law of Trusts (Oxford University Press, 2016).
2 ibid.
3 Knight vs. Knight [1840] 49 ER 58
4 Tommy Cheung, ‘Secret Trusts and Testamentary Freedom’ (2019) 25 Trusts & Trustees 730.
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, Is there Certainty of Intention in a purported trust where the instrument uses precatory words but
does not expressly state the manner in which the trustor would wish for the trustee to deal with
the property?
Rule
The general rule with regard to Certainty of Intention in trusts is that the trustor must have
intended to create the alleged trust.5 Although no particular words such as 'trust' are required,
intent must be discernable from the instrument's words. English trust law became more strict on
trusts from the 18th Century onwards. Whereas the English Court of Chancery ruled in favor of
trust instruments using precatory words in these two centuries, this changed in the late 19th
Century case of Re Adams and The Kensington Vestry.6 In this case, the testator had used the
words “…in full confidence that she will do what is right…’’ The Court ruled that this was an
absolute gift and not a trust.
Subsequent decisions of English Courts have favored this approach. In the 2008 case of Staden
vs. Jones7, it was ruled that a Court of law will look at the context of the entire document in
assessing the existence of a trust. The aim here is to avoid the subversion of justice where words
such as ‘trust’ are inserted merely to force a trust that on the whole does not exist.
In the 2018 case of North vs. Wilkinson8, the UK Court of Appeal stated that it must be
ascertainable from the general context of the case that the trustor intended for a trust to be
created. Essentially, North vs. Wilkinson9 has upheld the rule in Re Adams and The Kensington
5 Gary Watt, Trusts, and Equity (Oxford University Press,
2018). 6 Re Adams and & Kensington Vestry [1884] 27 Ch. D.
394
7 Staden vs. Jones [2008] EWCA Civ. 936
8 North vs. Wilkinson [2018] WLR (D) 88
9 ibid
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A trust is a relationship in which one party called the trustor grants another party, trustee, the
legal right to hold title to money, property, or assets to benefit a beneficiary.1 In practice, trusts
have been viewed as an easier and less costly manner of bequeathing wealth and safeguarding
the trustor’s properties. They reduce the legal processes as well as estate taxes since they create
fiduciary relationships between the trustor and the trustees.2
The law on trusts as is today is attributable to the locus classicus case of Knight vs. Knight3
which affirmed the requirement for the three certainties; the certainty of intention, the certainty
of the object, and the certainty of the subject matter. The ruling was that absent any of these
three certainties, a trust would fail, and a Court would instead find an absolute gift. Over time,
the law of trusts has developed to give each of the Certainties a detailed framework.4 This will be
used in the next three sections.
(A)
The value of the estate given in trust to Benny is £500,000. According to the facts, the trustor
hopes that the trustee will do what is right by using it to benefit the trustor's two children named
expressly and using any accrued interest to benefit the trustor’s named sister.
Issues
1 James Penner, The Law of Trusts (Oxford University Press, 2016).
2 ibid.
3 Knight vs. Knight [1840] 49 ER 58
4 Tommy Cheung, ‘Secret Trusts and Testamentary Freedom’ (2019) 25 Trusts & Trustees 730.
This study source was downloaded by 100000856941565 from CourseHero.com on 11-28-2022 15:24:21 GMT -06:00
https://www.coursehero.com/file/72350806/The-Law-of-Trustsediteddocx/
, Is there Certainty of Intention in a purported trust where the instrument uses precatory words but
does not expressly state the manner in which the trustor would wish for the trustee to deal with
the property?
Rule
The general rule with regard to Certainty of Intention in trusts is that the trustor must have
intended to create the alleged trust.5 Although no particular words such as 'trust' are required,
intent must be discernable from the instrument's words. English trust law became more strict on
trusts from the 18th Century onwards. Whereas the English Court of Chancery ruled in favor of
trust instruments using precatory words in these two centuries, this changed in the late 19th
Century case of Re Adams and The Kensington Vestry.6 In this case, the testator had used the
words “…in full confidence that she will do what is right…’’ The Court ruled that this was an
absolute gift and not a trust.
Subsequent decisions of English Courts have favored this approach. In the 2008 case of Staden
vs. Jones7, it was ruled that a Court of law will look at the context of the entire document in
assessing the existence of a trust. The aim here is to avoid the subversion of justice where words
such as ‘trust’ are inserted merely to force a trust that on the whole does not exist.
In the 2018 case of North vs. Wilkinson8, the UK Court of Appeal stated that it must be
ascertainable from the general context of the case that the trustor intended for a trust to be
created. Essentially, North vs. Wilkinson9 has upheld the rule in Re Adams and The Kensington
5 Gary Watt, Trusts, and Equity (Oxford University Press,
2018). 6 Re Adams and & Kensington Vestry [1884] 27 Ch. D.
394
7 Staden vs. Jones [2008] EWCA Civ. 936
8 North vs. Wilkinson [2018] WLR (D) 88
9 ibid
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