What are the three certainties?
- Certainty of intention
- Certainty of subject matter
- Certainty of objects
What type of approach is taken when ascertaining the certainty of intention?
Objective approach
How can intention be ascertained?
- Written documents
- Use of the word ‘trust’
- Segregating or earmarking assets
- The importance of context
- Relationship with the other certainties
How can the meaning of words in a written document be ascertained?
- By their natural ordinary meaning
- Any relevant contextual features of the document
- Facts which are known to/assumed by the author(s) of the document when it was created
- Common sense
What are the two distinct requirements of certainty of subject matter?
- The trust property requirement - it must be possible to identify the trust property
- The beneficial entitlement requirement - it must be possible to ascertain the beneficiary’s interest in the trust property
When are problems commonly encountered when identifying trust property?
- A person attempts to identify the trust by description
- A person attempts to create a trust of a specific number of items from a larger quantity pf similar items without identifying those to be held on trust
What are examples of intangible assets?
- Company shares
- intellectual property rights
- debts
what does fungible mean?
An identical and readily exchangeable asset
Examples of tangible assets?
- Diamonds
- Cash
What types of trust requires a greater degree of certainty for the test of certainty of objects?
Fixed trust - trustees must know exactly how to divide the assets
In which circumstances is the degree of certainty concerning the certainty of objects a less stringent test?
- A discretionary trust
- Where the power of appointment exists
In what circumstances regarding certainty of objects should the ‘is/is not test’ be used?
Powers of appointment
What are tangible assets?
Physical assets such as diamonds and cash
What are intangible assets?
Assets that do not exist in physical form such as company shares, intellectual property, debts
What does fungible mean?
Identical and readily exchangeable
