The Concept of the Three Certainties
The concept of the three certainties was first explained in the English case of Knight v. Knight (1840) 49 ER 58, heard by the Court of Chancery, where the testator had given his real and personal property in the form of the will. In this instance, the court decided that the trust should be maintained because there was not enough real certainty in its definition to support its ability to achieve the settler's stated goal. In the end, the court must state with absolute certainty what the settler meant. More specifically, the Court of the Chancery in Knight vs. Knight stated that in the event property which was bequeathed absolutely to somebody, a trust was established if the words or terms used were imperative, and if the object and the subject of the trust were definite or certain. Thus, in the absence of adequate certainty, it is impossible to create a trust. In order to determine the validity of each of the dispositions as outlined, it is imperative to understand the three critical certainties that establish its validity. They are:
1. The Certainty to Establish a Trust
The certainty or conviction to establish a trust. For example, did the parties intend the trust to be a matter of fact?
2. The Certainty of the Subject Matter
The certainty of the subject matter which answers the question regarding the actual property intended to be the subject of the trust and the actual beneficial interests.
3. The Certainty of the Objects
Finally, there is the certainty of the objects which defines or identifies the beneficiaries of the trust. In this case, as per the question, non-charitable trusts are compelled to satisfy the prerequisite.
Validity of the Disposition
a) Validity of the Disposition
This paper will begin with the disposition concerning the subject willing (and intending) to bequeath Scathach £200,000 to utilize in whatever way the partner deems fit. However, there is the condition that a minimal portion must go to young Ambrose, whereas she can consider giving the remainder to two remaining children. Essentially, the disposition fails in the court of law for not fulfilling all the certainties as listed above. As was outlined in Knight v. Knight, three certainties have to be present for the valid trust to be established. Clearly, Elias holds the intention to leave money for his children and partner. However, he does not state it clearly. In Lambe v. Eames (1871), the court held that there was no trust created by the precatory of words. In other words, stating that the property was at the partner's behest or due to the disposal in whatever way she deemed best for her benefit was unenforceable it did not satisfy the certainty of the subject matter. Clearly, Elias did not specifically state the amount of money which three children should receive from the total amount. There was ambiguity in the precise amounts that the partner and the three children ought to receive from the total amount. For example, instead of stating that Ambrose should receive "minimal amounts" from money, he should have stated , for instance, £50,000.
Similarly, as for Matt and Lee; there is the nonexistence of certainty of the subject-matter as to the exact amount of money the partner ought to offer them to be beneficiaries of the principal amount of £200,000. For example, in Palmer v Simmonds (1854) 2 Drew 221, the court rejected the disposition's validity because of the inexistence of certainty in subject-matter; here, the Settlor had stated that "the bulk of his estate" was the assets. As a result, it is possible that the court will not implement Elias' disposition as aforementioned against Thomasin because of the absence of subject-matter.
b) Validity of the Disposition
Consequently, it follows that all the three certainties have to be satisfied to make the trust valid. In the party's premise, he meets the disposition regarding the certainty of objects. He specifically and explicitly states that he has left 950of his 1000 shares in the company to the named trustee - Thomasin who will hold for Shelby. It means that Shelby automatically becomes the object of the trust, thereby satisfying the certainty of the object rule. By stating clearly that Shelby is to receive a specific amount of his shares, he outlines the portion of beneficial interest that she should claim from the disposition, which satisfies the certainty of the subject-matter requirement (Boyce v Boyce 1849). The beneficial interest that Shelby ought to claim is precise, meaning she cannot dispute the trust's validity. As was held in Staden v. Jones(2008), the court could also take into consideration the surrounding proof that shed light on the parties' legitimate intentions. Here, the court considers Elias' intentions and deem them sufficient to create trust (certainty of intentions).
For instance, in Hunter vs. Moss (1994) 1 WLR 452 the testator was to bequeath the plaintiff 50 shares from his estate. In this case, the trust did not particularly specify which of the 950 available shares held by the testator that the beneficiary could receive from Roanoke Productions Ltd. However, the court can hold that since the entire shares were of a similar nature under the same company, it will be necessary to recognize the 50 shares and thus deem the disposition valid as a trust. Here, Shelby can probably put in force this disposition against the Thmasin because the instrument has satisfied the three requirements of the valid trust. Elias defined the person intended to benefit from the shares which ought to be given to the residents of Roanoke Island's people. Pursuant to the above mentioned fact, the certainty of subject-matter is evident from the onset because Thomasin has been selected as the trustee and has been provided with limitations in terms of dividends and the capacity to resolve disputes which means that the benefits that Shelby and the residents ought to receive are outlined and made distinct.
c) Validity of the Disposition
In the final disposition, non-charitable purpose trusts is obvious. This form of trust lacks particular individual beneficiaries, but it is habitually set out by testators to manifest a non-charitable objective. For example, in Morice v. Bishop of Durham, it was held that liberality and benevolence are broader concepts than the "charity" purpose. Similarly, it was also held in Petingall v.Petingall (1842) 11 L.J Ch 176 that gifts for caring for particular animals, although not charitable, are valid trusts. In other words, gifts have to be restricted to a narrow field or particular purposes to be valid trusts under non-charitable purpose trust. Additionally, in Re Denley's Trust Deed (1969), Goff J held that the beneficiary principle was restricted to impersonal purpose trusts. Consequently, for a non-charitable trust to be certified as valid, the equitable right has to be enforceable.
In Re Astor's Settlement Trusts (1952), the court held that the promoting of excellent understanding among nations and the safeguarding of the autonomy of newspapers were reasonable rights that were unenforceable, thus the trust that had been established by the testator was not valid. For this reason, I opine that the courts will declare the third disposition invalid. Even though it is obvious that the testator, Elias, possesses the intention to form the trust instrument, he lacks the certainty of the object and subject-matter. He has established a non-charitable purpose trust intended to provide a positive memorial to him. However, the court will not uphold this disposition exclusively because of perpetuity; he lacks nobody else to ensure the actualization of the trust.
Besides, he will have specified the duration of his memorial to which it can be restricted, for instance, thirty years. After this period, people will stop enforcing his memorial. As a result, the court can consider upholding the legitimacy of his non-charitable purpose trust. The testator, for instance, in Re Endacott (1960) Ch 232 CA, used the words: "some useful memorial to myself," which were deemed to be everlasting, thereby not enforceable. Further, the court explained "perpetual," representing something that was in permanence or continuity and did not have an end, and lasts forever. If it is not upheld in the memorial, then it logically follows that the construction of a fresh Coven Island is void. As every aspect of the definition affects the the other one, it fails to satisfy the three-pronged test of English uncertainty (under trust) law. Therefore, the final disposition cannot be enforced against Thomasin by a court of law.
