Certainty of objects: a requirement to create an express trust

What is certainty of objects?

The objects of a trust are the persons who benefits from the trust itself also called beneficiaries. Certainty of objects may also refer to the purposes for which the trust has been declared.

Why do we need to identify the objects of the trusts?

There must be somebody to enforce the trust against the trustee if necessary. There must be someone capable of bringing an action to court if the obligations of the trustee(s) are not fulfilled. The trust must also be capable of being implemented and if there is no human beneficiary to gain the benefits then the whole concept of the trust is pointless.

Certainty of objects where there is a trust for an individual

  • Where the person who will benefit from the trust is expressly named in the trust document then there is no confusion as to the certainty of objects.

  • Where an individual is not expressly named in the trust document but the document refers to a description of the person that should benefit from the trust property, if the description is so precise and clear that it is obviously that person then this requirement is satisfied. For example, ‘Hold property on trust for my mother… or eldest son’.  

Certainty of objects where the trust is created for a group of people

  • Where a trust is created for a class or group of people described in the document such as ‘my children’, this will only succeed where there is sufficient certainty to identify every member of that class/group of people.  

Difficulties that may arise

  • The group of people may be defined or described in such vague terms that its meaning could be interpreted in a number of different ways; this is known as conceptual uncertainty.  

  • It may also be the case that if there is any evidence needed to show who is actually in the class of people, the evidence may be unavailable.

The tests to establish whether the group of people can be identified

There are two tests created to see if all the individuals within a group of people can be clearly identified. 

    Firstly, the class ascertainability test. This comes into play if it is possible for the trustees to create a complete list of every person that comes within the group to benefit from the trust.

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For more information on:

  • What test do I apply?
  • A Fixed Trust
  • A Discretionary Trust
  • Reasons why a trust may be uncertain as to the objects of the trust
  • Failure on the grounds of Administrative Unworkability
  • How could uncertainty be resolved?
  • Curing uncertainty by referring to a third party