‘The certainty of intention’: A requirement when creating an express trust

The Three Certainties

There are three requirements called ‘certainties’ that are an essential to establish an express trust and for the trust to be a valid one. The three certainties are: 

  1. Certainty of Intention (or words)
  2. Certainty subject matter
  3. Certainty of objects

This article will consider the requirement of certainty of intention

Certainty of Intention

There can be no express trust without the intention to create such a trust. The most obvious way to show the intention of both parties is to put in writing that both parties clearly intend on creating a trust. If the word ‘trust’ is placed in the agreement this is a well established indicator that the intention is present. The intention may still exist without directly stating trust in the agreement, this is by the use of precatory words.

What are precatory words? 

Precatory words are those of expectation, words of hope and desire but vague in the sense that they are not definitive in what they are explaining. When you state the word ’trust’ it is quite clear what it is you are talking about. If in an agreement it was stated that, ’I hope that the property should be used in a particular manner or ’ I have every confidence the property will be use in this way’,  there is no exact intention expressed and it could be interpreted to give rise to a different meaning. 

Do precatory words give rise to a trust?

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For more information on:

  • Other ways in which a persons intention can be implied, assuming the intention to create a trust from the behaviour of the parties
  • Realising there was an intention to create a trust from the separation of larger funds.