Express trusts & the three certainties
An express trust arises where a settlor deliberately creates a trust. For a valid express trust the three certainties must all be present.
What "Express trusts & the three certainties" covers
- Knight v Knight requires three certainties: certainty of intention, certainty of subject matter, and certainty of objects.
- Certainty of intention looks to whether the settlor intended to impose a binding obligation; precatory words ('in the hope', 'wish') generally do not create a trust (Lambe v Eames).
- Certainty of subject matter requires both the trust property and the beneficial shares to be identifiable; tangible property must be segregated (Re London Wine) but identical intangibles may not need segregation (Hunter v Moss).
- Certainty of objects for a fixed trust requires a complete list of beneficiaries (IRC v Broadway Cottages).
- Certainty of objects for a discretionary trust uses the 'is or is not' / given postulant test (McPhail v Doulton): can it be said with certainty whether any given individual is or is not a member of the class.
- A discretionary trust may still fail for administrative unworkability or capriciousness even if conceptually certain (R v District Auditor ex p West Yorkshire).
- Failure of certainty of intention means no trust (donee keeps property); failure of subject matter or objects generally means a resulting trust back to the settlor.
Key cases & statutes
The authorities and provisions most likely to matter for this subtopic:
How it's tested in SQE1
SQE1 uses single best answer questions: a short factual scenario, one precise question, and five options of which only one is the best answer on the law applied to the facts. For express trusts & the three certainties, expect to be asked what the correct legal position is, what a party may or must do, or which outcome follows — with more than one option looking arguable. Reading the facts carefully and eliminating the near-misses is the skill that earns the mark.
Where candidates lose marks
- Applying the complete-list test to a discretionary trust — the McPhail 'is or is not' test governs there.
- Treating precatory words as automatically creating a trust; they usually do not.
- Confusing conceptual certainty with evidential certainty or administrative workability.
Learn this subtopic in the course
A video lesson, notes and exam-style practice on express trusts & the three certainties.
FAQ
Is express trusts & the three certainties tested on SQE1?
Yes — express trusts & the three certainties is part of the SQE1 Trusts syllabus (FLK2) and can appear in single best answer questions.
How is express trusts & the three certainties examined in SQE1?
SQE1 tests it by application: you're given a realistic scenario and choose the single best answer from five options. The focus is on using the law correctly, not reciting it — knowing the leading authorities (Knight v Knight (1840), Lambe v Eames (1871)) helps.