Certainty of subject matter and the critcisms of hunter v moss When creating an express trust knight and knight articulated that there must be certainty of subject matter, certainty of intention and certainty of objects. Certainty of subject matter is where there must be an identification of the trust property and certainty as to whom is which part of the trust property to be held. In relation to uncertainty of beneficial interests, the trust will fail where the method of distribution is stipulated by the sethlow but cannot take effect (Boyce v Boyce). However the trust will not fail where the method of distribution is not stipulated by the sethlow leaving the court to intervene (re napton). If there is an effect of lack of certainty in respect of the beneficial interests in the trust property a resulting trust will be imposed because equity hates a vacuum, the trust property will therefore be held on trust for the sethlow or if he is dead for his estate. In regards to identification of the trust property If there is a lack of a proper identification of the trust property, the trust will fail because the property never leaves the sethlow and there is no need for a resulting trust. However the term residue estate will not fail a trust because it means all the remaining trust property. It is quantifiable
A problem occurs where the wording used is not sufficiently certain as to know what property is intended to be held on trust and where the property that is held on trust is not segregated by the sethlow from a larger amount of similar property he owns. . If a trust fund is not segregated then there will be no certainty of subject matter and the trust will fail. The problem is identifying the property that constitutes the trust fund. The property must be identifiable otherwise the courts would not know which property is to be distributed to the beneficiaries. It must be shown that the sethlow intended to create a trust over specified property. In Palmer v...
Please join StudyMode to read the full document