21.1 Express Trusts: Certainties, Formalities and Constitution

If an express trust never comes into existence, later advice about trustees' duties, beneficiaries' rights or family-home shares is built on air. SQE1 Functioning Legal Knowledge 2 (FLK2) Trusts Law tests whether you can tell a client that a promised trust is valid, unenforceable, or still incompletely constituted. This independent OpenExamPrep section is written for that task. OpenExamPrep is not the Solicitors Regulation Authority (SRA) and does not claim official approval, review, partnership or exact equivalence with SRA materials. Use it with the SRA's SQE1 FLK2 Trusts Law list for assessments from 1 September 2026, and with the cases and statutes themselves.

Why certainties, formalities and constitution are tested together

A competent newly qualified solicitor does not stop at "the client meant to be kind." Knight v Knight (1840) 3 Beav 148 requires three certainties: intention, subject matter and objects. Even a certain trust of land may be unenforceable without writing. Even a certain, evidenced trust fails if the property never reaches the trustee and no volunteer exception applies. Exam questions often give you a ceremony, a half-completed share transfer and a disappointed relative — and expect you to run those three filters in order rather than reach for a single case.

Certainty of intention

The settlor must intend to impose a mandatory obligation, not a moral request. Precatory words such as "in full confidence" or "I wish" often fail (Re Adams and the Kensington Vestry (1884) 27 Ch D 394). The same phrase can succeed if the rest of the instrument shows a duty (Comiskey v Bowring-Hanbury [1905] AC 84). Conduct can declare a trust: a parent who puts a cheque aside and tells others that the money already belongs to a child may have declared a trust of the fund. A failed gift is not rescued by relabelling it as a trust (Jones v Lock (1865) 1 Ch App 25; Richards v Delbridge (1874) LR 18 Eq 11). The court looks at the words and the context, not at whether the settlor used the word "trust."

Certainty of subject matter

Two questions arise: what property is held on trust, and what share each beneficiary takes. "The bulk of my estate" is too vague (Palmer v Simmonds (1854) 2 Drew 221). A trust of 20 bottles from an unidentified bulk of wine failed because the bottles were not segregated (Re London Wine Co (Shippers) Ltd [1986] PCC 121). Tangible goods in a mixed bulk generally need appropriation (Re Goldcorp Exchange Ltd [1995] 1 AC 74). Identical intangible shares are treated more generously: a declaration of trust of 50 of 950 indistinguishable shares in one company was upheld in Hunter v Moss [1994] 1 WLR 452. If the beneficial shares themselves are uncertain — "a reasonable income to my widow, the rest to my children," with no yardstick — the gift of residue can fail unless the court can apply an objective measure.

Certainty of objects: fixed and discretionary trusts

Fixed trusts give named persons defined shares ("to my children in equal shares"). The test is the complete list test: the trustees must be able to draw up a list of every beneficiary (IRC v Broadway Cottages Trust [1955] Ch 20). If they cannot, the trust fails and an automatic resulting trust may carry the property back to the settlor — the link into 21.3 Resulting Trusts and Trusts of the Family Home.

Discretionary trusts require trustees to distribute among a class but leave the shares unfixed. After McPhail v Doulton [1971] AC 424, the test is the any given postulant or is or is not test: can it be said of any given person that they are or are not a member of the class? Conceptual uncertainty ("my deserving friends," if "friends" has no workable boundary) is fatal. Evidential difficulty in finding a particular person is not. Re Baden's Deed Trusts (No 2) [1973] Ch 9 accepted "relatives" as conceptually workable. A discretionary trust can still fail for administrative unworkability where the class is so hopelessly wide that a reasonable survey is impossible (a trust for all inhabitants of West Yorkshire in R v District Auditor, ex p West Yorkshire Metropolitan County Council (1986) 26 RVR 24). Capriciousness — a class with no rational connection to the settlor — is a related but distinct objection, more often discussed for mere powers (Re Manisty's Settlement [1974] Ch 17).

Formalities for express inter vivos trusts

Trusts of pure personalty can be declared orally. Trusts of land or of an interest in land must be manifested and proved by writing signed by the person able to declare the trust, or by will: Law of Property Act 1925 (LPA 1925) s.53(1)(b). The writing is evidential. An oral declaration is not a legal nullity, but it is unenforceable unless an exception applies. Equity will not allow the statute to be used as an instrument of fraud (Rochefoucauld v Boustead [1897] 1 Ch 196). Resulting, implied and constructive trusts are exempt from s.53(1)(b) by s.53(2) — essential later for family-home constructive trusts.

A disposition of an existing equitable interest must be in writing signed by the disponor or an authorised agent: s.53(1)(c). Direct instructions to trustees to hold for someone new can be a s.53(1)(c) disposition (Grey v IRC [1960] AC 1). Directing an outright transfer of the legal title so that the equitable interest disappears with it may fall outside s.53(1)(c) (Vandervell v IRC [1967] 2 AC 291). These rules concern inter vivos express trusts. A testamentary trust must also satisfy the Wills Act 1837, which is a different formality.

Self-declaration ("I now hold this painting on trust for my niece") constitutes the trust at once if the certainties, and any s.53(1)(b) writing, are present. Transfer to third-party trustees does not. Constitution is the next filter.

Constitution and the volunteer rule

Milroy v Lord (1862) 4 De GF & J 264 is the starting rule. The settlor must use the method the asset requires: delivery (and often a deed) for a chattel, a stock-transfer form and registration for many shares, a deed and registration for a registered legal estate. Equity will not perfect an imperfect gift, and it will not treat a failed transfer as a self-declaration of trust (Richards v Delbridge). The disappointed intended beneficiary is a volunteer unless they gave consideration or took under a marriage settlement. From 1 September 2026 the FLK2 list names three exceptions you must be able to apply: Re Rose, Strong v Bird, and Choithram v Pagarani.

The rule in Re Rose

In Re Rose [1952] Ch 499 the settlor executed share transfers, handed them with the certificates to the transferee, and so did every act only he could do. Registration by the company was a third-party step. The Court of Appeal held that the beneficial interest passed on delivery of the executed documents. The same "every effort" or "last act" idea was applied to a land transfer in Mascall v Mascall (1984) 50 P & CR 119 once the donor had executed the transfer and handed over the land certificate. If a required act still sits with the settlor — they never signed the form, or they kept the certificates — Re Rose does not help. Compare the failed transfer in Milroy v Lord, where the settlor had not done all that the nature of the property required. Pennington v Waine [2002] EWCA Civ 227 added an unconscionability gloss; for SQE1, treat Re Rose as the named rule: the settlor must have completed their own last act.

The rule in Strong v Bird

Strong v Bird (1874) LR 18 Eq 315 perfected an imperfect gift when the intended donee became the donor's executor and the donor had a continuing intention to give until death. Legal title vested in the executor for estate administration, and equity would not require that executor to restore an asset the deceased still meant them to keep. The intention must be to make an immediate gift, not a future testamentary promise (those belong in wills or, sometimes, proprietary estoppel in 21.3). If the donor later treats the asset as their own, continuing intention fails (Re Gonin [1979] Ch 16). The donee's appointment as executor is what supplies the legal title. Do not reach for Strong v Bird merely because the disappointed claimant is a relative; executorship plus continuing immediate-gift intention are both required.

Choithram v Pagarani

In T Choithram International SA v Pagarani [2001] 1 WLR 1 the settlor announced "I give to the foundation" while he was one of the charity's trustees, but he never transferred the shares and deposits to the co-trustees. The Privy Council held that he had declared himself a trustee. Lord Browne-Wilkinson said that although equity will not aid a volunteer, it will not strive officiously to defeat a gift. Once one of several trustees holds the property on the declared trusts, constitution does not fail merely because the others have not received a transfer. Choithram is the case for the client who names themselves among the trustees and speaks in the language of giving. It is not a general rescue for a client who tries to give to someone else and does nothing.

A client-shaped example

Omar signs a stock-transfer form for 1,000 shares, hands it and the certificate to his sister as trustee for his nephew, and posts nothing further. The company register still shows Omar at his death. Re Rose can complete the trust because Omar's last act was done. If instead Omar only told his sister "I will transfer the shares next month," and then appointed her executrix, Strong v Bird needs a continuing immediate-gift intention, which those words may not show. If Omar was himself one of three trustees of a family foundation and said "I give these shares to the foundation," Choithram is the better analogy. If none of those facts exist, advise that the estate still owns the shares: equity will not assist a volunteer.