Certainty of Subject matter.

Here in this situation certainty means the capability of being ascertained.

Subject matter of a trust may be uncertain,*

1) Where the actual property, which is the subject matter of the trust may not be
clearly defined or definable. ( there are two situations under that)
2) Interests of the beneficiaries may not be defined or definable. (done later)

A = *it must be possible to establish exactly what property is the subject matter of the trust.

 *Palmer V Simmonds (Facts in brief)

- Testatrix left her property ( residuary estate) to her husband
- Subject to trust on his death “to leave Bulk of my residuary estate to four named
relatives.”
- Held – there is a conceptual uncertainty over the meaning of the word “Bulk”
- No trust was created – husband took the property absolutely.

 *Sprange V Baranard ( facts in brief)

- Testatrix left the stock to her husband
- “ for his sole use and all that is remaining, that has no necessary use, equally to
be divided between his brothers and sisters”
- Held – what property remained after the husband’s use would be impossible to
execute. =conceptual uncertainty – husband took the property absolutely.

 Palmer V Simmonds and Sprange V Baranard was ruled following the principle
decided in the case of* Hancock V Watson which formulated the principle that
where there is an absolute gift of property in the first instance and trusts are
subsequently imposed on that property and if those trusts fail, it will be vested
absolutely in the person to whom the property was initially given. And it is up to the
court to determine what the subject matter is.

Shihan Ananda Page 1

  *Re Golay’s Will Trust (facts in brief)
- Testator directed the trustee to allow the beneficiary to “enjoy one of my flats,
during her life time and receive a *reasonable income from my other properties”
- Held – reasonable income could be determined by referring to beneficiary’s
previous standard of living.
 If the subject matter is identified in the instrument by referring to testator’s
residuary estate, no element of uncertainty arise – *because in that situation
property is capable of being ascertained.

B = where part of the property is subjected to the trust.

 *This is where the subject matter of the trust forms part of the specific bulk.
However part that forms the subject matter is not ascertained.
 1) Tangible property
- *Re London wine ( facts in brief)
- Settlor purported to create a trust out of an unascertained boxes of wine held in
his warehouse.
- Trust failed. = because it was not possible to say exactly which boxes do form
part of the subject matter of the trust.
 2) Intangible property
- Dillon LJ in* Hunter V Moss, distinguished the decision in Re London wine. (facts
in Brief)
- Trust created on 50 shares out of 950 shares which the settlor initially had.
- Held – *identification of a particular 50 shares (trust property) is irrelevant and
unnecessary.
- Each share carried an identical right.

 In Re London wine judge further said = declaration of a trust for £ 1000 in a bank
account with a current balance superior to £ 1000 would also be effectual.

Shihan Ananda Page 2

  More over in the case of intangible property, funds should have been segregated. If
not there will be no trust as there is no identifiable trust property at all. ;*
Macjorden construction V Brookmount Frostin. ( facts in brief)
- 3% out of each stage payment was held on trust for the builder.
- Fund was never formed.
- Nothing to form the intended subject matter of the intended trust.

 *Hemmens V Wilson Browne ( facts in brief)

- One party was given right to call for £ 110000 from the other party at any time.
- No trust is created. = no identifiable fund to form the subject matter of the trust.

Consequences of uncertainty of subject matter.*

 If it is self declaration of trust, nothing would happen.

 If it is a trust accompanying a transfer, then the transferee takes the property
outright.

Shihan Ananda Page 3