‘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?

The courts have never stated a definitive rule about precatory words but have suggested they do not automatically create a trust. The courts have said that if the instrument as a whole suggests a trust instead of a gift then they will allow precatory words in these circumstances.

Other ways in which a persons intention can be implied, assuming the intention to create a trust from the behaviour of the parties

This may be the case where the owner of the property in question is claiming to be the trustee holding the property on trust for another persons benefit. In the case of Jones v Lock (1865) a father placed a £900 cheque in the cot of his child stating “I give this to baby for himself”. It was held that this was to insufficient to establish his intention to create a trust. It was a one-off declaration and was not enough to prove he intended on giving the baby the money for himself.  

Realising there was an intention to create a trust from the separation of larger funds.  

It is normally seen that by keeping certain funds I.e. property or money separated from all your other assets implies that they are to be held on trust. This has also been seen in cases where businesses keep monies received from a particular source away from all their other funds courts have noted this as the intention to hold this money on trust.