Equity & Trusts - Three Certainties: Objects

Certainty of objects is more about the people who are the beneficiaries of a trust instrument rather than the physical objects that make up a trust.

We have to examine the different types of trust:

Fixed trusts are simple because they clearly identify the beneficiaries.

Fiduciary mere powers give trustees a power without the obligation to actually use that power. As far as the certainty of objects is concerned we have the is or is not test from Re Gulbenkian [1968] but this raises problems around a small percentage of postulants where there is uncertainty. Lord Browne-Wilkinson attempted to resolve this in Re. Barlow [1979] by seeing the benefits as a series of identical, individual gifts.

Discretionary trusts are not truly discretionary as they require a trustee to exercise their power. McPhail v Doulton [1975] applied the is or is not test but in Re. Baden (No. 2) [1973] the justices attempted to resolve the uncertainty issue:
Sachs LJ: Onus is on the apparent beneficiary
Megaw LJ: Trust can still be valid with minor uncertainties

Holders of personal powers are not subject to a fiduciary duty and so certainty of objects does not apply; Megarry VC in Re. Hay’s ST [1981].

There are some grey phrases and areas of language worth examining closely:
'Friends'
Generally uncertain; Brown v Gould [1972]
BUT Re. Baden (No. 2) [1973]
'Customers'
Uncertain; Sparfax v Dommett [1972]
'Relatives'
Statutory next of kin; McPhail v Doulton [1970]

There are also ways of resolving uncertainty:
Using experts
Re. Tuck’s ST [1978]
Rules that set out how to define beneficiaries
Re. Wright’s WT [1857]
Administratively workable
Re. Hay’s ST [1982]

There also has to be consideration of partial failure of trusts on grounds of uncertainty:
Generally where a trust partially fails the whole trust fails
Re. Gulbenkian [1968]
Remove the uncertain clause of the instrument
Re. Leek [1969]
Courts will always try to validate a trust where possible to do so
Harman J in Re. Gestetner [1953]