The Three Certainties

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  • Topic: Wills and trusts, Beneficiary, Trust instrument
  • Pages : 5 (2047 words )
  • Download(s) : 59
  • Published : November 22, 2012
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Trust
The Three Certainties
An express trust will not take effect unless the three certainties are present .These certainties are (1)Certainty of words (2)Certainty of objects (3)Certainty of subject matter .It is therefore important to prove all three elements in the given scenario to prove that a trust exists .If any of these certainties are not present the trust fails and the donee of the property which is sufficiently defined ,takes the property as an absolute gift .If the words are imperative and thus raise a trust and the objects ascertainable but the property is not specified in terms of identity ,then there will be no trust ,for there would be nothing to hold and administrator of a trust property .This rule applies for all three elements ,there would be no trust without one or more of the elements not being present . The issue in the first scenario is; Whether all three of the certainties exists? Firstly certainty of words, this principle is that an expressed trust is created where the settlers shows an intention to do so .It is therefore important to show settlers intention rather than moral obligation. Before 1830 proprietary words were construed by the courts of having the force to create a trust .The Common Law allowed an estate being disposed of to be vested in the execution .However after 1830 the law was changed by the executing act which provided that disposition of property should not go to the executor and the courts stopped construing precatory words as having the effect to create a trust. The words “I bequeath” and “I would like” is used in the given situation. The words of I bequeath $200,000 to my dear friend can be contrasted with that of Re Codrington where the testator’s wishes were carried out where he bequeted two of his plantations in Barbados to the society for the propagation of the Christian Religion .The main question was whether the will created a binding trust or not as the testator went on to use the word desire .It was held that a binding trust was created as Douglas CJ looked at the language in accordance with the law and intention .It is therefore necessary to look at the language intention and the law in this scenario . The words I would Like can amount certainty of words .The case of Lambe v Earnes (1871)held that precatory words in a gift and did not mean that the doner intended the donee to hold the property for trust .This has been enforced as trust ,gifts accompanied by precatory words .For example “Feeling Confidence ”or in “Full confidence ” in Re Adams and Kensington .It is not however an absolute rule that a trust can never be created where precatory words are employed . On the contrary if the instrument as a whole or the context in which precatory words are used ,indicates that a trust was intended ,the courts are quite prepared to give effect to the trust ,for example like Re Hamilton and Re Steel .If the words I would Like in this situation was intended to create a trust rather than a mere obligation then it can fall within the scope of certainty of words . Secondly, Certainty of subject matter .There are two aspects for the requirement of subject matter (1)Certainty as to the property held upon trust (2)Certainty as to the beneficial interest which each beneficiary is to receive .With respect to (a)The will or other instruments creating the trust must make it clear as to what property is to be bound by the trust . Can then “the remaining part of what is left in the first scenario constitute to that of subject matter? The case of Sprange v Bernard a testatrix gave property by her will to her husband for the sole use and directed that at his death whatever is left that he does not want for his own use was to be divided between her sister and brother .It was held that there was no trust, since it was uncertain what would be left after the death of the husband. How then could one know what would of if anything be left after the death of Nancy, Gloria’s friend .The...
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