Overview
This lecture covers the certainty of intention, the first of the three certainties required to create an express trust, explaining its requirements, relevant legal principles, and illustrative cases.
The Three Certainties in Trusts
- To create an express trust, there must be certainty of intention, certainty of subject matter, and certainty of objects.
- Certainty of intention requires it to be clear that the settlor intended to create a trust rather than another legal arrangement.
Certainty of Intention Explained
- There is no single objective test for certainty of intention; courts consider all circumstances.
- Equity looks to substance over form, meaning actions may outweigh specific language in the trust instrument.
- Courts examine both the language used and the conduct of the settlor to determine intention.
Key Cases: Certainty of Intention
- Knight v Knight (1840): Set out the three certainties needed to create an express trust; lack of intention can result in an absolute gift instead.
- High Commissioner for Pakistan (2020): No trust was found because the agent transferring funds lacked authority, and language alone was insufficient.
- Use of the word "trust" is not conclusive; authority and context are critical.
Precatory Language vs Legal Obligation
- Precatory words express hope or desire (e.g., "I hope," "I desire") but do not usually create a legally binding trust.
- Trusts require language indicating a legal obligation, not just a moral wish.
- The presence of precatory language does not automatically negate a trust if other evidence of intention exists.
Case Examples on Language
- Lambe v Eames (1871): The phrase allowing the widow to use the property "as she may think best for the benefit of herself and her family" was too weak to show intention—thus, no trust.
- Re Steele's Will Trusts (1948): Despite using outdated precatory language, the solicitor's intent (using past precedents) was considered, creating a controversial finding of certainty of intention.
Key Terms & Definitions
- Express Trust — A trust expressly created by a settlor, as opposed to implied, resulting, or constructive trusts.
- Certainty of Intention — Clear evidence that the settlor intended to create a trust.
- Precatory Language — Words expressing a wish or hope rather than a binding intention.
- Settlor — The person who creates the trust.
Action Items / Next Steps
- Review the cases Knight v Knight, Lambe v Eames, and Re Steele's Will Trusts.
- Prepare examples distinguishing precatory from imperative language.
- Read about the remaining two certainties: subject matter and objects.