Express Trusts: The Three Certainties
6.1 Trust creation begins with classification
Before applying the three certainties, identify what the alleged settlor was trying to do. Was there an outright gift, a transfer to trustees, a self-declaration of trust, a contractual arrangement, or merely a non-binding wish? Equity will not convert a failed gift into a declaration of trust merely to rescue the transaction. The mode of creation matters.
6.2 Certainty of intention
The question is objective: did the words and conduct manifest an immediate intention to impose enforceable trust obligations? Technical words are unnecessary. Paul v Constance and Re Armstrong show that ordinary language and surrounding conduct can be enough. Conversely, expressions of hope, confidence or future intention may be merely precatory. Byrnes v Kendle confirms the objective character of the inquiry and the importance of the legal effect of the instrument and circumstances.
6.3 Certainty of subject matter
The court must be able to identify the property held on trust and, where necessary, the beneficial entitlement. If the property or shares are conceptually or evidentially uncertain, the trust may fail. In problem questions, distinguish uncertainty about the existence of property from difficulty valuing or administering an otherwise identifiable asset.
6.4 Certainty of objects
A private trust must have beneficiaries who satisfy the applicable certainty test. Fixed trusts require a complete list or otherwise ascertainable beneficial entitlements. Discretionary trusts use the is-or-is-not conceptual test associated with McPhail v Doulton, subject to administrative workability and capriciousness concerns. Always identify the trust type before stating the test.
6.5 Queensland statutory context
The Bond resource list shown by the user identifies the Trusts Act 1973 (Qld). That Act was repealed on 28 April 2026 when the Trusts Act 2025 (Qld) commenced. The 1973 Act should remain in the book as a course-listed historical source, but current legal propositions must be checked against the 2025 Act. The common-law/equitable requirements for express trust creation continue to require careful doctrinal analysis; statutory provisions may govern administration, powers, variation and other trust matters.
6.6 Exam method
Identify the method of trust creation; isolate the alleged trust property; state intention, subject matter and objects separately; apply the correct objects test for the trust type; consider statutory/formality issues; then state the consequence if one certainty fails.
Exam rule map
- Do not let equity perfect an imperfect gift by re-labelling it a trust without intention.
- Intention is objective and does not require the word “trust”.
- Analyse subject matter and objects separately.
- Identify fixed versus discretionary trust before stating the objects test.
- Treat Trusts Act 1973 as historical/course-listed; use Trusts Act 2025 for current Queensland law.
Leading authorities
Ordinary repeated words and conduct objectively demonstrated an immediate trust; technical language was unnecessary.
Victorian authority that formal trust language is not essential where words and circumstances objectively establish an intention to constitute a trust.
High Court authority emphasising objective construction of trust intention and legal effect.
Australian authority concerning certainty of intention and the distinction between binding trust language and non-binding expressions.
Leading discretionary-trust authority for conceptual certainty of objects.
Course source spine
- Dal Pont, Equity and Trusts: Commentary and Materials
- Trusts Law in Australia, Ong
- Trusts Act 2025 (Qld) - current
- Trusts Act 1973 (Qld) - course-listed historical
These sources are teaching/research references. Primary legislation and judgments control where commentary differs.
FAQs — questions
FAQ 1. Must a settlor use the word “trust”?
FAQ 2. Can equity simply treat a failed gift as a trust?
FAQ 3. What happens if one of the three certainties fails?
FAQ 4. Which Queensland Trusts Act is current in October 2026?
Multiple-choice questions
MCQ 1. Paul v Constance is authority that:
MCQ 2. Before applying certainty of objects, a student should identify:
MCQ 3. In Queensland, the current principal trusts statute is:
MCQ 4. Re Armstrong is useful principally on:
Short-answer questions
Short answer 1. State the three certainties.
Short answer 2. Why is Paul v Constance a useful exam authority?
Short answer 3. How should the book treat the Trusts Act 1973 (Qld) in 2026?
High-distinction IRAC problem
George places $200,000 into a term deposit in his own name. He tells the bank manager, “I want the interest while I am alive, but the capital is for my two children when the deposit matures or when I die.” The receipt identifies George “in re” each child. George dies before maturity. His executor says there was only an unenforceable future intention to make a gift. Advise the children.