← The hardest concepts in United Kingdom law
In one breath
An express trust is valid only if there is certainty of intention to create a trust, certainty of the property and interests, and certainty of the objects, meaning the beneficiaries. If any one is missing there is no trust, and the property usually stays with the person who owned it.
The picture
The parcel at the post office
A clerk will accept a parcel only if three things are clear. The sender must actually have decided to send it, not merely remarked that sending it would be nice. The contents must be identifiable, because the clerk cannot post “some of the books in the shop”. And the addressee must be someone the clerk can find. If any of these is missing, nothing leaves the counter.
A trust is tested the same way (Knight v Knight). Intention: the words, read in context, must show an intention to bind a person as trustee, not a hope or wish. No special words are needed, and the word “trust” is not conclusive. Subject matter: the property and each beneficiary’s share must be identifiable, so that “the bulk of my estate” fails (Palmer v Simmonds). Objects: for a fixed trust the court must be able to list everyone who benefits; for a discretionary trust it must be able to say of any person whether they are or are not in the class (McPhail v Doulton).
Where the picture stops working
A parcel needs only these three things, but a trust may be perfectly certain and still fail for want of a proper transfer of the property to the trustee (Milroy v Lord) or, for land, writing. Courts also disagree about how far an unseparated part of a mass of identical items, such as shares, can be held on trust (Hunter v Moss). Scots trust law has its own rules, and this page describes England and Wales.
How it really works
- 1Intention: ask whether the settlor meant to bind someone as trustee, not merely to express a wish. The language read as a whole must show an intention to create an obligation (Re Adams and the Kensington Vestry).
- 2Subject matter: ask whether the trust property is identifiable and the beneficial interests are certain. A gift of “the bulk of my residuary estate” is too vague (Palmer v Simmonds).
- 3Objects: for a fixed trust, ask whether every beneficiary can be listed. For a discretionary trust, ask whether it can be said with certainty of any given person that they are or are not within the class (McPhail v Doulton).
- 4Distinguish conceptual uncertainty (the words of the class are vague) from evidential difficulty (it is hard to prove who falls inside a clear class). Only the first usually defeats a trust.
- 5If any certainty fails, no valid trust arises, and the property remains with the original owner or passes under a resulting trust, depending on the facts.
Why people get it wrong
- Thinking a trust needs magic words. The word “trust” is neither necessary nor conclusive.
- Treating a hope as an obligation. A wish that someone will look after another person is not enough on its own to create a trust.
- Missing that the certainties are only the first hurdle. A certain trust must also be properly constituted, by transfer of the property to the trustee, and for land it needs writing.
- Treating any vague class as fatal. Evidential difficulty does not defeat a trust, and discretionary trusts need only the “is or is not” test (Re Gulbenkian’s Settlements).
A worked example
The facts are invented
Wren leaves a will saying, “I give my books to my brother Cal, hoping that he will pass some of them to my friends.” Cal takes the books outright: the language shows a hope, not an intention to bind him as trustee.
Compare a gift of ten thousand pounds “to Cal on trust, to pay to such of my former employees as he chooses”. The intention is clear and the class can be identified, so a discretionary trust is valid. Now suppose Wren had given “a good part of my savings” on trust for her nieces. Nobody can tell which part, so the subject matter is uncertain and the trust fails.
Try it
A testator leaves property “to my wife, in the hope that she will use some of it for the benefit of our children”. Does this create a trust for the children?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Knight v Knight, (1840) 3 Beav 148
- Palmer v Simmonds, (1854) 2 Drew 221
- Milroy v Lord, (1862) 4 De GF & J 264
- Re Adams and the Kensington Vestry, (1884) 27 Ch D 394
- Re Gulbenkian’s Settlements, [1970] AC 508
- McPhail v Doulton, [1971] AC 424
- Hunter v Moss, [1994] 1 WLR 452
Where to go next
More hard concepts in United Kingdom law
- Resulting and constructive trusts (Trusts and equity)
- Proprietary estoppel (Trusts and equity)
- The rule in Rylands v Fletcher (Tort law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. The United Kingdom has three legal systems: England and Wales, Scotland, and Northern Ireland. These pages mostly describe the law of England and Wales and say where Scots law differs when it clearly does; Northern Ireland law is often similar to English law but is not covered separately. Parliament is sovereign, but the devolved legislatures also make law within their powers. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources before relying on any rule.