The three certainties

Every valid express trust must satisfy three distinct certainties, per Lord Langdale MR in Knight v Knight (1840): (1) certainty of intention—the settlor must intend to create a trust, not merely express hope or make a gift; (2) certainty of subject matter—both the trust property and beneficial interests must be identifiable; (3) certainty of objects—beneficiaries must be ascertainable. Each serves a discrete function: intention distinguishes trusts from other relationships, subject matter enables enforcement, and objects identify who can compel performance. Without all three, no trust arises, though other legal relations may exist. The doctrine ensures trustees know their obligations and beneficiaries can enforce their proprietary rights.

Knight v Knight (1840) 3 Beav 148: Established the canonical three certainties formulation when upholding a trust despite precatory language. Essential for providing the doctrinal framework still applied today.

McPhail v Doulton [1971] AC 424: Revolutionised certainty of objects by applying the 'given postulant' test to discretionary trusts instead of requiring a complete list. Crucial for enabling modern discretionary trusts in commercial contexts.

Re Goldcorp Exchange Ltd [1995] 1 AC 74: Rigidly applied certainty of subject matter to unappropriated chattels, denying trust status where specific property wasn't identified. Demonstrates equity's insistence on identifiable property.

Hunter v Moss [1994] 1 WLR 452: Controversially upheld trust of 50 unappropriated shares from 950, distinguishing intangibles from tangibles. Created exception for fungible intangibles despite theoretical difficulties.

Re Kayford Ltd [1975] 1 WLR 279: Found trust intention from commercial context and segregation despite no formal declaration. Shows courts' willingness to find trusts protecting creditors/customers.

Courts apply a sequential analysis. First, examine intention objectively from words and conduct—'trust' need not be used but substance must show binding obligations, not mere hope. Precatory words create presumption against trust unless context rebuts. Second, identify trust property with precision—chattels need appropriation per Goldcorp, but intangibles may suffice with proportionate interests per Hunter v Moss. Also ensure beneficial shares are clear. Third, apply correct certainty test: fixed trusts need complete list of beneficiaries; discretionary trusts need only 'given postulant' test (can determine if any individual is within class). Distinguish conceptual uncertainty (fatal—vague definitions) from evidential difficulty (not fatal—hard to prove facts). Consider administrative unworkability for very large classes.

Students wrongly assume precatory words never create trusts—context may rebut presumption. Many confuse tests: applying 'complete list' to discretionary trusts or 'given postulant' to fixed trusts. Hunter v Moss is overextended—it applies only to intangible fungibles, not chattels. The conceptual/evidential distinction is missed—'relatives' is conceptually certain despite evidential difficulties. All three certainties must be addressed even if one clearly fails. Formality (s.53(1)(b)) is conflated with certainty—these are separate requirements.