The first principle when deciding if there is certainty of intention is the nature of the language used; the words, as said in Wright v Atkyns,[5] "must be imperative".
Since Lambe v Eames,[10] the courts have instead taken the approach that the circumstances and the reading of the statement as a whole are the factors, and that no particular words will impose a trust on their own.
[11] It is possible to create an express trust without being aware that one is doing so, so long as the court can determine from the person's intention that a beneficial entitlement should be conferred which the law (or equity) will enforce.
In Re Kayford, the company involved took actions to protect its customers by moving their funds into a separate bank account.
[14] According to Byrnes v Kendle, the question that needs to be answered in determining whether a certainty of intention exists is "What is the meaning of what the parties have said?"
The problem was that these bottles were not individually identifiable, and Oliver J held that: I appreciate the point taken that the subject matter is a part of a homogeneous mass so that specific identity is of as little as importance as it is, for instance, in the case of money.
The exception to this rule is found in Hunter v Moss,[19] which concerned 50 shares meant to be transferred to an employee out of a total holding of 950.
The test for fixed trusts is that the trustees must be able to give a complete list of the beneficiaries, as laid down in IRC v Broadway Cottages.
In Re Hay's ST,[26] Megarry VC said that: A mere power is very different [from an ordinary trust obligation].
Examples include where familiar but overly vague terms are used, such as "good customers" or "useful employees"; if the concept cannot be certain, the trust fails.
[34] Evidential uncertainty, on the other hand, is where there is a question of fact that is impossible to answer, such as when a claimant cannot prove he is a beneficiary.
This does not necessarily invalidate the trust, as Jenkins J (as he was then) said in Re Coxen:[35]I must keep in mind the distinction between uncertainty as to the events prescribed by the testator...in which the condition...is to operate (which is generally speaking fatal to the validity of such a condition) and difficulty in ascertaining whether those events...have happened or not, which is not necessarily fatal to such a validity.The next type of uncertainty, ascertainability, is where it is impossible to find the beneficiaries, either because they have died, moved or changed names.
As has been pointed out, it is a matter of degree, and it is only when one reaches, on the evidence, a conclusion that it is so vague or that the difficulty is so great that it must be treated as virtually incapable of resolution, that one is entitled, to my mind, to say that a gift of that nature is void for uncertainty".
[36] The final type of uncertainty is administrative unworkability — where the trust is, by its very nature, so impractical that the trustees cannot carry out their duties.
These are: The first device has been approved by the courts: in Re Tuck's Settlement Trusts,[40] Lord Denning allowed the court and trustees to engage a Chief Rabbi to determine whether a beneficiary's wife was "of the Jewish faith" which determined the beneficiary's eligibility to the trust.
This has two problems; firstly, the class could be too broad to be administratively workable, and second, the courts are unable to judge if the power has been exercised appropriately.
However, in Re Hay's Settlement Trust, Megarry V-C held that, exercised properly, this sort of agreement could be administratively workable, and would not be immediately void.