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4. Certainty requirements

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Three certainties must be satisfied for the creation of an express trust to protect the trustees and also for the benefit of the court: certainty of intention (a certain intention to create a trust), certainty of subject (certainty with regard to the assets subject to the trust and the shares in which it is to be held by the beneficiaries) and certainty of object (certainty with regard to beneficiaries or purposes of the trust). This chapter deals with the certainty requirements in relation to the creation of trusts, the distinction between conceptual and evidential uncertainty, the consequences where a trust fails for lack of certainty and how a settlor can draw up a trust with sufficient certainty. It also examines the construction of a trust, creation of express trusts in commercial contexts, fixed trusts, the class ascertainability test, discretionary trusts and gifts subject to conditions.