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Referreing to the case of Knight v Knight, proposition of the three certainties is taken from the dictum of Lord Langdale to create a trust are certainty of intention,subject matters and objects. For Certainty of trust, it refers to the ‘trust property’, mean such property subject must either be clearly defined or capable of ascertainment by testator/settlor. “The trust fund MUST be identifiable. A trust in which the trust property is mixed with other property so that it is impossible to identify precisely which property is held on trust, will be invalid.” The ‘trust property’ MUST be clearly defined or capable of ascertainment. In other words, the property MUST be specified in such a way that it can be identified. For instance, it will be obvious that there’s certainty of subject matter when a testator says, “I will leave my first edition copy of John Fowles’s The Magus to my wife.” HOWEVER, difficulty arises when the settler manifests an intention to create a trust and when the settler identifies the intended beneficiaries with sufficient precision but nevertheless fails to identify which property is meant to be held on trust. As a general rule therefore, failure to segregate the intended trust property from all other property will lead the trust being void. For example, scenario 1: - - A settler decided that he wished to hold on trust for the benefit of his grandchildren 3 of his collection of 12 vintage cars. In that situation, if the settler failed to specify which 3 out of the total holding of 12 racing cars were to be held on trust, then the trust would be invalid for uncertainty of subject matter. Scenario 2: - - If a settler wished to settle $30,000 on trust for his 3 grandchildren in equal shares but did not identify which $30,000 out of his total fortune of $2M was to form the trust fund, then the trust would also be void. – Citing the Scholary Article of “Guernsey: The Three Certainties Or: When Is A Trust Not A Trust?” Written by Norson B Harris published in year 2003, it was written down that there are a total of 2 aspects to this requirement, the first is There must be certainty as to what property is to be held upon trust; and there must be certainty as to the extent of the beneficial interest of each beneficiary. The first is essential as a trustee must know exactly what is and what is not included within the trust. A failure to deal with the property that belongs to the trust appropriately may result in a breach of trust. First, in the case of Palmer v Simmonds, Henrietta Rosco, the settlor, said she wanted to create a trust for various people over her property, and then to ‘leave the bulk of my said

residuary estate unto the said William Fountain Simmonds, James Simmonds, Thomas Elrington Simmonds and Henrietta Rosco Markham equally.’ The problem here was that the testatrix had left the “bulk of my said residuary estate” to Thomas Harrison to hold on trust for various people.  Issue is whether the ‘bulk of my residuary estate’ constitute certainty of subject matter? Held such statement was not sufficiently certain for the purpose, thus trust was not established because the bulk is not determinable.  It was held that the subject matter of this trust was too uncertain by dint of the vagueness of the expression ‘the bulk’. For a trust to be valid, it MUST make the subject matter of the trust certain. However, in another case Re Golay (1965), Adrian Golay wrote a will saying that he wanted Mrs Bridgewater ‘to enjoy one of my flats during her lifetime and to receive a reasonable income from my other properties …’ The will was challenged and it was questioned whether the clause was certain enough to be enforced, because it was not clear which flat, or what income would be reasonable. When it comes to distinguishing trust property from other assets, the courts have dealt with this according to the nature of the subject-matter involved. In the case of Peck v Halsey, a bequest of “some of my best linen” was held to be void for uncertainty - Case: Re Kolb’s Will Trust o the testator referred to “blue chip securities” which is a term in common usage to designate large public companies considered a safe investment. However, because the term has no specific technical meaning Cross J ruled that the clause could not be delineated with sufficient precision and therefore that it could not be upheld. o Held- It was held that there was uncertainty as to subject matter as to the meaning of ‘blue chip securities

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On the 2nd aspect, it was said that there must be certainty as to the extent of the beneficial interest of each beneficiary. The beneficial interest of each beneficiary must be certain so that the trustees know exactly what or how much each beneficiary will be entitled to on distribution of the trust and prior to that, what income should be accumulated for or paid to the beneficiary. We could see in the case of Boyce v Boyce. For the facts of the case A fixed trust was set up by will, which consisted 2 houses for 2 beneficiaries, Maria and Charlotte. Maria was to

choose which house she wanted and Charlotte was to have the other. Unfortunately, Maria died before the testator and did not make her selection. The trust failed because it was uncertain that which particular house Charlotte should receive as it is impossible to know which house Charlotte should have. This case could be contrasted with the case of Re Goley’s Wills Trust as mentioned by my partner, the words: ‘to enjoy one of my flats during her lifetime and to receive a reasonable income from my other properties …’ the phrase’reasonable income’ did not cause the trust to fail for uncertainty. Unlike Boyce’s case, the Court was able to determine what a reasonable income was. His lordship Sir Ungoes-Thomas J said: “The court constantly involved in making such objective assessment of what is reasonable and it is not to be deterred from doing so because subjective influences can never be wholly executed.” Other than that, certainty of subject matter can depend upon the type of property. In the case of Re London Wine, the customers bought wine, they did not take it home, instead, it was stored for them in a number of warehouses. London wine got into financial difficulty and receivers were appointed. Some customers claimed tjat their wine was protected because it was held on trust for them. Even their lawyers argued that there was no need of a ‘direct and express declaration’ of trust, because a trust could be created by the actions of the parties involved the Judge said:” I find it impossible to spell either out of the acknowledgement signed by the company or out of the circumstances any such trust as is now sought to be set up. It seems to me that in order to create a trust it must be possible to ascertain not only what the interest of the beneficiary is to be but to what property is to attach.” The customers cannot identify which specific bottle of wine belonged to them. The trust property must be ‘specified or ascertained’ for a trust. In the latter case of Hunter v moss, Moss told Hunter that he would hold 5 percent of the shares in his company for Hunter. There were a total of 1000 shares in the company, all the same type of shares and Moss had previously told Hunter that he would give him 50 shares, thus there is no doubt that the number of shares was held in trust. The court sees no problem with this as all the sahres were the same and it did not matter which 50 share it was. As it is intangible property unlike the wines that are tangible in London wine’s case. The judge Dillon LJ said the trust was valid, first, because it was necessary for there to be one to enforce the terms of the employment contract. Second, he distinguished Re London Wine Co, saying, "That case is a long way from the present. It is concerned with the appropriation

of chattels and when property in chattels passes. We are concerned with a declaration of trust".[11] He instead concluded that as there was no tangible distinction between the shares, and as such no reason to hold the trust void just because the shares had not been segregated. As such, the trust was valid. Another difference between both cases in Hunter v Moss, there was an actual declaration. In London Wine’s case it was merely a somewhat theoretical argument stating that there could be a trust. As a conclusion, it is necessary for the settlor or testator clearly to define the trust property and to identify clearly the separate equitable interest of the beneficiaries. Although there are no particular test to determine how certain the words have to be, usually it is up to the courts and judges to define the words used and decide whether is it too vague to be a valid trust....