⇒ These certainties are fundamental to the validity of any trust (there is also a potential 4th certainty) → so if one of these certainties is uncertain the trust may be invalid
⇒ There are three certainties required for the creation of a valid express trust:
⇒ These forms of certainty are commonly referred to, respectively, as certainty of intention, certainty of subject matter, and certainty of objects
⇒ Without such certainty, the trust will be held to be void → so an express trust must demonstrate these three certainties otherwise it will be void
⇒ The words used or the circumstances in which the trust was formed must show that it was the intention of the settlor that the trustee have an enforceable obligation to carry out their wishes or instructions
⇒ ‘Precatory’ words – desire, request – will not, under normal circumstances, impose more than a moral obligation on the owner. If the word ‘trust’ is used, then it will usually ensure that there is an enforceable obligation.
⇒ As a general rule, following Lambe v Eames, the Court will find intention to form a trust when the words are imperative rather than precatory. The use of words which impose a request on the owner to use the property for the benefit of another will not suffice to form a trust
⇒ In Re Adams and the Kensington Vestry (1884) a testator left property to his wife (W) by will “in full confidence that she would do what was right by his children”. It was held that the property passed to W absolutely and no trust had been created
⇒ In the case of Comiskey v Bowring-Hanbury , however, the testator left property to his wife "in full confidence... she will devise it to one or more of my nieces as she may think fit”. So this appeared to be merely a moral obligation on the wife. However, the House of Lords held (by a majority) that a trust had been created
⇒ Except where a contrary intention is shown it shall be presumed that if a testator devises or bequeaths property to his spouse in terms which in themselves would give an absolute interest to the spouse, but by the same instrument purports to give his issue (i.e. lineal descendants) an interest in the same property, the gift to the spouse is absolute notwithstanding the purported gift to the issue.
⇒ So where there is a provision for the children in remainder, the part making the bequest to the beneficiary should be considered in isolation. If this part makes an absolute gift, then any subsequent qualification should not be considered as creating a trust.
⇒ E.g. “I leave my house to my wife and after her death to my children in equal shares” would not create a trust, notwithstanding the attempt to bequeath the house in remainder to the children.
⇒ See the case of Re Harrison (deceased); Harrison and another v Gibson and others  → This case tried to apply s22 AJA 1982, but it wasn't applicable
⇒ It should be noted that s.22 is consistent with the decisions in both Comiskey v Bowring-Hanbury and Re Adams and the Kensington Vestry: in Re Adams, the gift in remainder was to the children, in which case the bequest fell within the terms of s.22 (i.e. the wife took an absolute gift and there was no obligation for her to dispose the propert to her children); in Comiskey, the gift in remainder was to the nieces, in which case s.22 does not apply.
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⇒ The court may infer intention to create an express trust from the words or actions of the legal owner (settlor) → there are not many cases in which the court has done this
⇒ In Twinsectra v Yardley , Lord Millett said that intention is objective and NOT subjective i.e. intention is about whether the reasonable person believes the settlor intended to create an express trust
⇒ See the case of Paul v Constance : this is the best example of the court inferring intention
⇒ In the case of Re Kayford  Megarry J said "it is well settled that a trust can be created without using the words 'trust' or 'confidence' or the like: the question is whether in substance a sufficient intention to create a trust has been manifested"
⇒ Note:where the circumstances are such that it would be unconscionable for the legal owner to deny the beneficial interest of the beneficiary, the court is likely to infer a constructive trust, rather than declare that there was an express trust created.
⇒ The case of Jones v Lock (1865) shows that the finding of an intention to create a trust is based on the surrounding circumstances
⇒ In some circumstances, an express declaration of trust may not form a trust, if the transaction is a sham or fraud.
⇒ In Midland Bank v Wyatt  a trust was attempted to be created so as to shield their property from their creditors (contrary to insolvency law)
⇒ Where a trust fails for lack of certainty of intention, there is no trust and the legal owner takes the property absolutely. Thus in Lambe v Eames, where the widow had left the property outside the family, against the wishes of her late husband, there was no trust and the widow, who was the legal owner under the will, also held the beneficial title. Accordingly, the property was hers to dispose of as she wished.
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