As was stated in Knight v Knight2 by Lord Langdale MR, there are three certainties that must be present in order to constitute a valid express trust, they are certainty of words, certainty of subject matter and certainty of objects.3
The certainty of words requirement was described in Re Kayford Ltd.4 as being akin to a certainty of intention. The intention is to impose a mandatory obligation on the trustees of how the trust property is to be dealt with. As was stated in Banks v Goodfellow5 the testator does not need to have the understanding of a lawyer as to the contents of the document but a clear intention to trust, must be present.
The certainty of subject matter relates to the trust property. The trust property must be clearly defined and identified. Otherwise the trust must fail as who is to decide which assets are to form the basis of the trust. The case law has established that uncertainty as to the subject matter can either be conceptual or evidential. By conceptual uncertainty is meant that it is impossible to ascertain what the intention of the testator was. For example, in Palmer v Simmonds6 Kindersley V-C said that a trust could not be created, as a 'definite, clear and certain part' of the estate had not been identified. The court is willing to exert effort in ascertaining the trust property as Ungoed-Thomas did in Re Golay7 where he found that a 'reasonable income' was capable of ascertainment by the court, but if there is no clear property, there can be no trust.
What's more, the allocation of property must be specific. In Hemmens v Wilson Browne (a firm)8 it was held that a right to payment of 110,000 at any time could not form a trust as the sum was unspecific, or in the words of Judge Moseley QC, 'there was no identifiable fund to which any trust could attach.'9 I think it is fair to say that 'my houses' is sufficiently specific to allow for ascertainment.
To my stepdaughter Analise the home of my parents with instructions that the property is held within the family in perpetuity.
This provision raises two concerns.
The first is that there is a good chance that Lady Penelope does not presently own the house of her parents. While there are tax and other reasons why she may own it, we are informed that her parents were still alive at the time of her death.
If Lady Penelope does not presently own the house of her parents, then it is impossible for her to create a valid trust over it. While she may have been due to inherit the house, we are told that her parents are still alive and this would therefore not occur. It is a fact of law that it is not possible to create a trust for property that the testator does not own yet, but hopes to own in the future. This has been expressly stated in the case of future inheritance under a will or intestacy.10 In Re Ellenborough11 the settlor granted in 1893 to trustees, any property she may become entitled to in the future on the deaths of her brother or sister. When her brother died nine years later, she decided not to give the property to the trustees, and Buckley J upheld her decision on the ground that no trust could have been created in 1893 over property that the