Learning about trusts and the 3 certainties. Specifically, certainty of intent.
I’ve read that the settlor must demonstrate a clear intention to create a trust as opposed to creating something else.
And It must be shown that the settlor intended to create enforceable obligations on the legal owner of the property (i.e. the trustee)
Can I assume that certainty of intent is also required if and when additional trustees are appointed to the trust later?
Hello,
Knight v Knight - intention to create a trust, the assets must be clear and the objects (beneficiaries) are certain.
Trustees aren’t mentioned to my knowledge in the case law, (3) certainties - I’d suggest changing trustees does not affect the intention.
We’d assume changing the assets and beneficiaries also will not affect intention.
The case law focuses on clarity of the assets and beneficiaries - the fact they change does not affect intention in my opinion.
Richard
PFEP
Hello Richard,
Thank you for your response.
I don’t think my question was worded particularly well as your answer would suggest that changes to trustees would not invalidate certainty of intent…apologies if I’ve misunderstood though.
To clarify my question…most additional trustee appointments to an existing trust are done by deed. This makes it clear and unambiguous that the settlor intends to appoint X as a new trustee and the property will be vested in the continuing and additional trustee etc etc.
However, if a deed is not required, but instead the appointment can be done by an other written document, must this written document be just as clear and unambiguous as to who is to be appointed? And contain the same information as a deed (that the property will be vested in the continuing and additional trustees etc)
Thank you.
Hello,
Not my area I’m afraid. I’m sure someone of the forum can help.
Richard
PFEP
No problem, Richard. Thank you for coming back to me.
Why not stick with the deed? After all any other wording format needs to be clear as to who the present trustees are, trust property involved and who is it being appointed et cetera.
Patrick Moroney
Bwl
I was about to say the same as Patrick. Sticking to a deed would remove any element of certainty.
Cliona O’Tuama
Solicitor
It is generally considered Good Practice for the appointment of trustees to be effected by deed, despite the legislation merely requiring any such appointment to be made in writing.
If an appointment is not made by deed, I suggest the written document should contain much the same information as would be included in a deed so as to ensure there can be no ambiguity or other misunderstanding. Any errors could result in the intended “outgoing” trustee not being discharged, or the “new” trustee not effectively being appointed, thereby becoming a “trustee de son tort” who will have none of the trustee powers vested in them, or the benefit of any of the usual trustee protections.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Thank you all for your responses.
I am no expert on UK trust law at all, as I have following this forum and learning. I don’t even know in practice the difference in using a deed or other forms of writings.
However, I believe the certainty of intent is examined in determining whether a trust is validly set up, in other words, in relation to the creation of a trust.
However, appointment of additional trustee is apparently an issue not related to creation of trusts but a secondary issue following the creation of trusts.