2. Certainty of Subject Matter

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Certainty of intention is the foundation of the whole Trust arrangement, and even where there is a dispute over some issue pertaining to the subject matter or objects it is common for Court to examine whether there was the prerequisite intention to create a Trust at all. After all, a Trust imposes a duty; it is improbable that an individual intended to impose a duty if it is so vague that the Trustees tasked with fulfilling it cannot ascertain what is required of them.

Without a clear intention, a purported Trust may fail and be considered a mere finland mobile database gift or a non-binding moral obligation. For instance, where the assets are gifted into Trust, but the Settlor retains control over the Trust Property it may fail for still be considered to form part of the Settlor’s Estate and therefore be distributed in accordance with their Will or intestacy rules.

In the case of an Express Trust, the existence of an instrument such as a Trust Deed is evidence of the intention to create a Trust. Where a Professional Trustee is engaged, the drafting should provide the Settlor with certainty.


The certainty of subject matter comprises of two distinct elements:

Trust Property: It must be possible to identify the Trust Property.
Beneficial Entitlement: It must be possible to ascertain the Beneficiary’s interest in that Trust Property.
Trusts are characterised by two principal features, a duty and a right to property.