There Are Two Ways to Create an Express Trust

There are two ways to create an express trust; these are declaration of self as a trustee and the transfer of property to trustees. For an express trust the three certainties must always be present; certainty of intention, objects and subject-matter. If any of these are doubtful, the trust will be rendered invalid.

To begin with, the settlor must make it clear that his intended trustees are under an obligation to carry out his wishes. Lord Romilly [1] expressed the maxim ‘equity looks to the substance rather than the form’, the court looks not at the words of the settlor but rather the result he was trying to achieve. It is therefore evident that no particular form of words are required, ‘it is well settled that a trust can be created without using the word “trust” or “confidence”. The fact that Walter has not used the word ‘trust’ does not then mean there is no trust. Furthermore ‘the words must be imperative’. This is evident in the case of Paul-v- Constance [1977] 1 ALL ER 195, where the phrase ‘the money is as much yours as it is mine’ was accepted by the court as sufficient evidence that he regarded himself as holding the account as trustee for himself and his wife.  Additionally a further difficulty arises where the settlor uses precatory words, which are expressions of hope and desire that the trustee will use the property in a certain way. The courts have adopted a strict approach since Lambe-v- Eames [2] where the phrase ‘in any way she may think best, for the benefit of herself and the family’ was held to be ineffective and the widow took absolutely. It could now be argued that the desire that Walter expressed,  that Theodore will give a reasonable share to his old workmates as he thinks fit, can be seen to be ineffective as it is only his desire that will happen, resulting in Theodore taking anything that is left of his property.

The next issue to be examined is that the settlor must make clear what property is to be subject to the trust, thus the certainty of trust property. Once again the words must have a clear meaning that the trustees, and if necessary the court can interpret. Uncertainty is based in two forms:

Property itself can be uncertain which constitutes no trust at all.

Beneficial entitlement can be uncertain where then the trustees hold on resulting trust for the settlor.

Thus looking the situations at hand, the phrase such as ‘anything that is left of my property’ will identify the subject matter clearly since it is easy to find what is left from Walter’s property. So as for the beneficial entitlement, the phrase ‘reasonable income’ in the case of Re Golay [1965] 2 All ER 660 was held not to be uncertain as the court said they can make an assessment of what a reasonable income is. Hence, it could be said that in this case there is certainty to the subject matter of the property and to the beneficial interest.

The final element of the requirement of certainty is that the settlor shall have identified the persons who are to benefit under the trust. There must be someone in whose behalf the court can decree performance; furthermore the trustee needs to know in whose favour he is exercising his powers and duties. When looking at fixed trusts to carry out this obligation trustees must clearly state names so no problem poses, there must be class ascertainably. On the other hand if it is a class of people (for example through a discretionary trust) the class must be clearly defined so the trustees know who each and every member is, there must be criterion certainty. Therefore a reasonable share of the property to distribute amongst his old workmates creates problems. Who then constitutes as his old workmates? Is it friends he has known for a very long time, or just workmates even possibly someone he has only worked once. This problem falls within interpretation, everyone has different interpretations of what they believe an old workmate is. Furthermore if the court is able to find criterion certainty, if the category falls within too wide of a group it can then be argued that it is administrative unworkable.

When looking at this scenario it is important to discuss whether it is simply a power given or a discretionary trust. A power is an authority given to a person to deal with property that is not their own, they are not in a fiduciary position and are free to exercise the power in any way they wish unhampered by any obligations or duties. It could be argued that Walter from the words “whom I direct to do his level best to see that” created a discretionary trust whereby the trustee (Theodore) is required to exercise his discretion from among a class of object and to determine the quantum of interest that the beneficiaries may enjoy. In Re Weir’s settlement [1969] 1 Ch 657 Cross J accurately defined a discretionary trust, he stated ‘the separate interest between of each separate object is unquantifiable, and of a limited kind. What he has is a right to be considered as a potential beneficiary, a right to have his interest protected by a court of equity and a right to take and enjoy whatever part of income the trustees choose to give him. He could accordingly go to the court if the trustees refused to exercise their discretion at all or exercised it improperly. Therefore the phrase “a gift to my old workmates” as seen in McPhail v Doulton 1971 AC 424 (HL) A trust provided that the trustees were to apply the income from a fund at their absolute discretion for the benefit of any officers and employees of a named company together with ex-officers and ex-employees and their relatives and dependants. It was held that this was sufficiently certain. In addition who is “old workmate” of Walter’s, may be on the same establishment of a friendship element. Thus if it can be said with certainty that any given individual is or is not a member of the class then a trust can be construe.

In conclusion, the three certainties must be met for a trust to be valid. For the first element it can be said to be held that there is lack of certainty. Moreover it can be seen as an absolute gift, and if it is seen as gift equity will not allow it to be valid. In the second requirement it can be seen clearly to that there is certainty of trust property as it can be sufficiently precise the identification of the trust property. Lastly in the case of McPhail-v- Doulton [1970] 2 ALL ER 228 which set the standard for determining the object of a trust, the ‘any given postulant test’ requires that beneficiaries fall within a class therefore the issue is whether the old workmates are a clear class so as to impose a valid trust.