welcome back everybody to the law of trusts in this lesson we're continuing to talk about the three certainties focusing on the first of these three certainties in this lesson this is of course the certainty of intention we'll explore what the certainty of intention entails in this lesson and we'll talk about some of the legal issues that arise from trying to establish intention for the creation of an expressed trust so we outlined the view in the previous lesson from the case from 1840 of night and night that in order for a trust to be created an expressed trust to be created so we're not talking about constructive or resulting trusts in terms of implied trusts we're talking about an expressed trust there must be a certainty of intention a certainty of subject matter and a certainty of objects it has to be clearly certain that the individual who is placing that property on trust intended to create a trust it has to be very certain and clearly uh definable and delineable what that property actually is is and we have to be very clear in and defining the ability to understand essentially who the beneficiaries are so who is and who isn't a beneficiary those are the three certainties so what does the certainty of intention tell us therefore well it just tells us that in order for an individual to create a trust it must be very clear that they have the intention to do so that they have clearly intended to do um the creation of a trust and not say some other kind of legal relationship the case of Knight and Knight as we remember from the previous lesson Illustrated this example quite nicely because it was held to be the case that the will was an absolute gift rather than a trust owing to a lack of in of certainty in terms of intention subject matter and objects and so this is why this uh the certainty of intention is so important in the formation of a trust but it should also be noted that the test for showing uh the certainty of intention uh is relatively vague and the reason for this is there is no one single definitive method by which we can show and prove the certainty of intention there's no clear objective test that we can just rely on that is established in some case or some statutes for determining what the certainty of intention is determining whether or not there is a certainty of intention and so as a result of which the courts have taken various different approaches on various accounts of how to show a certainty of intention in any given scenario now the first thing to note when we think about this certainty of intention is we have to also think about the Equitable Maxim which states that Equity will look to substance rather than form what does this mean in the context of the conversation that we're having what this essentially means is that determinations of a trust and whether or not there was an intention to create a trust may depend on the actions of a settler rather than the specific ific words cited in this alleged trust instrument so you have to go further than just reading the document itself which is alleged to have been a trust because the words may say one thing but if everything else to the cont says another thing uh then owing to the fact that Equity looks at substance rather than just at form it therefore means that we have to think about whether or not a a trust was actually created owing to the actions of the settler or the test data rather than the specific words cited now there are plenty of cases that illustrate this particular principle and I've gone for a very recent case from 2020 of the of the High Commissioner for Pakistan and the reason why is because a this is a complicated case and B this is a case which is quite interesting in terms of establishing a certainty of intention so ultimately this this case dates all the way back to the partition of India in the 1940s I believe when the transfer of money by the uh at the time nazam of of of Haida Abad which I'm not very good at the pronunciations before anybody comes at me in the comments um essentially they transferred money to the High Commissioner of Pakistan in the United Kingdom the monetary value of this fund had grown from the original1 million all the way back in the 1940s to a staggering 35 million in today's Revenue now the family of the naam had sought over the years to recover this money and they launched a number of proceeding uh proceedings sorry at a number of different times a new round of proceedings was to was to take place um in 2013 By Pakistan specifically now in the 2013 proceedings came against Nat West Nat West were the original repositories for the money so the original um Bank in which the the money was first deposited was Nat West and so the first of the proceedings in 2013 came by Pakistan to um the to tun out west as they were the original um repository now the issues in this case was the question for the court essentially was whether or not Pakistan had some beneficial interest or was a trustee in terms of the the the money the High Commissioner for Pakistan and it was held that no Express trust would arise since the original transfer of the property was done by an agent of the nazam who did not have the authority to create a trust and so in doing so this case does a number of things firstly it gives an indication as to the determination of the certainty of intention this is in the case where we have the allegation of a trust being created by a third party this third party in question was of course the agent of the aam secondly it gives us some insight into the language used in the process of creating a trust and that the impact of this language the impact of this language has essentially the use of the term trust is by no means conclusive as to the existence of an expressed trust it is one of the factors that must be taken into account when considering whether or not a trust has been created so that's quite interesting and this adheres to the principle of equity seeking substance rather than form or acting on substance rather than form because what it says here is that just because it says trust that doesn't mean anything because in this case the authority to create a trust had not been granted to the agent of the naam and so as a result of which the fact that there was the word trust UT utilized in the creation of this instrument is meaningless given the fact that there are other factors that must be taken into account and this gives rise to one of the biggest issues when it comes to the certainty of intention and this refers to the kind of language that is used in the creation of a trust now we highlight and we U single out this idea of precatory language for a number of reasons because in determining the certainty of intention how much weight should be given to certain words and the use of different types of language now this is where we get to this idea of prator language or precatory words a precatory word or a a precatory expression should I say is a set of words expression sentence phrase which expresses some kind of Hope or desire so for example the easiest one is I hope that blah blah blah blah blah I hope that the the property is put on trust or I hope that this happens or I hope that this person becomes the benefit of this um of this money that I've left in my will I desire you to I desire you to hold this property for for for for for my um family for examp example in law when we think about patory language and we think about it in relation to the certainty of intention the language itself I hope that or I desire you to is not enough in of itself to find the determination of an expressed trust you can't just go if you had a problem question and the problem question was asking you to essentially unpack the certainty of intention and you had this uh you had a trust instrument in front of you and in that we use lots of procat pieces of language you can't just say well because of the use of this language therefore a trust exists in of itself in modern law the aim is to try and find language which points to a legal obligation rather than just some kind of want or desire this is not to suggest though that the use of precatory language will nullify the existence of a trust if you have all the required prerequisites all the intention that you could possibly need to create a trust and you just so happen to use use the phrase I hope that or I desire you to that could still be enough to satisfy the certainty of intention but the modern law wants to be more certain in trying to establish a legal relationship here because I desire you to does not necessarily imply that you are essentially expressing the idea of a legal obligation which is what a trust would be or I hope that so language which points to a legal obligation is a lot more strong is a lot stronger should I say than that of um precatory language indeed too it should be noted that um we're talking not about moral obligations either we're talking about legal obligations the trust is a legal instrument it's the creation of equity and so as a result of which this idea of a moral obligation is also meaningless whether or not you're moral or not the idea is here we're talking about legality and legal obligations so let's think about the case of lam and Ames from 1871 essentially in this case the test data the person who is leaving the property on trust at at the point at which he dies um would leave his estate to his wife the wording of the will stated that the estate quote be at her disposal in any way she may think best for the benefit of herself and her family that is the sort of key part of the will that is important for our examinations now the question that the court may ask is was there a trust is this property being held on trust there for was there a necessary certainty of intention well the language was determined in this case to be too uh to be the uh sorry was determined to be procat language and so it did not impose the intention necessary to create and express trust so think how strong of a of a statement you have to make if this statement here is not enough to show the certainty of intention necessary to create and express trust if the phrase the the estate will be at her disposal in any way she may think best for the benefit of herself and her family that was not considered to be strong enough to create legal intention and you can understand why because it seems to be a passage that you would see in a will that um doesn't necessarily impose any kind of legal obligation the wife sorry the husband who has died has not suggested that the wife would be legally bound to hold this property on trust for the benefit of herself as a beneficiary and her family this doesn't seem to make much sense and so as a result of which this idea of patory language is very important in 1948 we have a famous case here of uh the the steel Wills trusts again this was a case which involved the use of language but in this case the use of language was done by a legal professional and what is interesting and and some of you might think is not particularly fair in this case is that the legal professional in question the solicitor had actually used language anguage which had been sufficient to create a trust in previous case law but more modern case law at least at the time the more modern case law actually showed that it failed to meet the standard threshold So This legal professional essentially had not been had not done their homework in terms of um keeping up to date with the kind of language which is necessary to show a certainty of intention so he uses uh or they use a a a a piece of language that used to be sufficient but then maybe isn't sufficient in a more modern context the language was specifically um quote I request my son uh my said Son to do all in his power blah blah blah blah etc etc etc now this was again the use of patory language and so there was should have been no certainty of intention okay now the reason why it was held to be the case that there was a certainty of intention was owing to the fact that the solicitor in creating the will had utilized language which was from previous precedent and that which the courts determined previously was sufficient to create and to find the certainty of intention this is a relatively controversial decision but you can understand the the the basis and the rationale for this decision because essentially what the courts do here is look a little bit further than just the words that are used in the will itself the words that are used in the will itself is are not sufficient to create uh the certainty of intention because uh modern case law has come and gone and it and it has essentially updated the standard by which we understand the certainty of intention but the fact that the legal professional was creating a will and in doing so went and had a look at the cases maybe from their old previous University notes um to see what kind of language was sufficient for the certainty of intention and that because they were using language from a previous precedent it clearly shows that even if the language wasn't sufficient today it was clearly the intention of the legal professional to use the language which would have been the creation of a trust they were just incompetent in their job if you will in not being able to use the more upto-date language which would have been more sufficient for the certainty of intention so you can understand the Judgment in that regard but you can still understand why it's a controversial decision because the language in and of itself would not have been sufficient for the creation of a certainty of intention