Trusts and Equity
The Three Certainties check-list: not exhaustive or prescriptive
Is there precatory wording?
If so, will this cause the trust to fail and to whom will the ‘trust’ property then pass (assuming certainty of subject matter exists)? Is there more than one possibility here?
If precatory wording exists, is it possible still to find intention to create a trust in spite of the precatory wording?
What duty would this then impose on the person supposed to carry out the trust?
Is the subject matter certain re identification of the property (the ‘what’ question)?
Is there linguistic certainty?
the issue of lack of segregation arise? If not, why is this?
Is the subject matter certain on the ‘which to whom’ question? (a requirement in the clause to make an ‘equal’ division resolves this)
Objects (beneficiaries)
What type of trust is being attempted and why?
What is the correct test for certainty of objects?
Is conceptual certainty needed?
Is evidential certainty needed?
Are the objects, therefore, certain?
If uncertain, what is the effect?
If the objects could be certain, what is the effect if beneficiaries cannot be geographically located and how can this be addressed?
Conclusion to clause (taking into account the aspects of the clause which were especially problematic on the facts)
