The ‘Three Certainties’ Test
The creation of an express trust may be achieved by one of two modes. The first involves the transfer of the relevant property to the trustee's subject to a declaration of trust in favour of the beneficiaries. The second mode requires the settlor to declare himself a trustee of the relevant property for the beneficiaries. The test is a mixed subjective and objective issue, in that the focus of attention involves the settlor's genuine intention as construed by the courts. An intention to create a trust is fundamentally different from the broader concept of an intention to benefit another simpliciter. There are many modes of providing a benefit to another, such as gifts, exchanges and sales of property. The term 'subject-matter', on its own, is ambiguous and inherently deals with two concepts: namely the trust property and the beneficial interest. Although the same test is applicable to both, it is important to distinguish each type of uncertainty.