Equity & Trusts

Equity & Trusts

Introduction

The three certainties are formed through the English laws of trusts that are based on the formation of showing trusts that if are to be considered valid should have the trust instrument in them which should be able to show the certainty of intention in the trust as well as the object and subject matter. The certainty of intention is a term that shows that it should be clear that the testator of the will has an intention of creating a trust which is not being based on any certain language that is being used. Similarly the word trust is not necessary for the creation for an actual trust or the trustator himself knowing that he is forming a trust.

In the starting of the 50s the courts of that time were more focused to conclude that the will was creating a trust rather than holding it as being void. The certainty of subject matter is a term that shows that a statement must clearly show what property, asset is being considered as the part of the trust. In the past times, the asset/ property were segregated from the property/ asset that were not in a trust. However more recently the judicial services are more appropriately differentiating between the intangible and tangible property and that for the intangible property there is not necessarily a requirement for segregation.

The certainty of objects shows that is should be obvious that the will shows who the beneficiaries are in the trust or more accurately (objects). In order for this to be clearly defined based on the trust firstly the beneficiaries are being individually identified and if not possible the trustees should be able to provide what the claimants are even if they are not a beneficiary.

The aspects that might have an impact over the certainty of the trust are the administrative work ability; ascertain ability, conceptual and evidential uncertainty. The administrative work ability is a term used in which the environment of the trust in which it is formed is not completely able to perform it realistically. Ascertain ability occurs when the beneficiary cannot be discovered. Evidential uncertainty is a requirement in which the beneficiary who is a claimant cannot be answered. However, this uncertainty may not always create an invalidity of the trust. The conceptual uncertainty is based on the language which can be unclear in some situations to properly validate the trust. Due to this the trust may be declared as void.

The reason why the three certainties are needed in a trust is that through these the court is able to validate whether the will is clearly forming a trust or not. The three certainties are based on the main points that create a trust that are the intention, object and subject matter. If all are clearly identifed then the court can validate in a more appropriate manner if the will is forming a trust or not. There are many situations when the will may be able ...