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The three certainties — SQE1 Trusts question

A worked single-best-answer question on the three certainties, with why each wrong option is wrong — the way SQE1 traps candidates.

The three certainties

Margaret died last year. Clause 4 of her will leaves her residuary estate, worth about £350,000, 'to my son Dominic, in the full confidence that he will do what is right and fair by my grandchildren'. Nothing else in the will refers to the grandchildren. Dominic has told his three nieces that he intends to keep the whole residue for himself. The nieces have asked whether they can compel him to share it with them.

Which of the following best describes the effect of clause 4?

  1. ADominic holds the residue on a fixed trust for the grandchildren in equal shares, because a testator's expressed wishes bind the person to whom the gift is made.
  2. BDominic takes the residue absolutely, because words expressing confidence or hope do not show the certainty of intention needed to impose a trust.
  3. CDominic holds the residue on a discretionary trust for the grandchildren, because the class of grandchildren is conceptually certain.
  4. DDominic holds the residue on a resulting trust for Margaret's estate, because the gift fails for uncertainty of subject matter.
  5. EDominic takes the residue absolutely only if the grandchildren cannot be listed completely, because otherwise a fixed trust arises.
Show answer and reasoning
B is the best answer. A trust arises only where the words, construed as a whole, show an intention to impose a binding obligation. Precatory words such as 'in full confidence that' are, without more, treated as a moral expectation rather than a trust obligation (Re Adams and the Kensington Vestry). Dominic therefore takes an absolute gift.

Rule: Precatory words expressing hope, wish or confidence do not, without more, show the certainty of intention required to create a trust, so the donee takes absolutely.

  • A Since the nineteenth century the courts have refused to treat precatory words as automatically creating a trust; the intention to impose an obligation must be shown. (wrong rule)
  • C Certainty of objects is irrelevant where there is no certainty of intention to create a trust in the first place. (answers a different question)
  • D The subject matter, the residuary estate, is certain; the defect is the lack of intention to create a trust. (right rule, wrong facts)
  • E Whether a complete list of objects can be drawn up does not matter when the words show no intention to create any trust. (answers a different question)

Source: Re Adams and the Kensington Vestry (1884) 27 Ch D 394; Knight v Knight (1840) 3 Beav 148

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