Certainty of Subject matter - Coggle Diagram
Certainty of Subject matter
A trust can only exist in relation to specific property
For a trust to be enforceable, the court must be able to ascertain with certainty what property is subject to the trust obligation. As Lord Browne-Wilkinson stated in Westdeutsche Landesbank Girozentrale v Islington London Borough Council: ‘In order to establish a trust there must be identifiable trust property.’ - 988
Failure to identify any specific property as the trust property will prevent the creation of a valid trust
Boyce v Boyce
The trust property has not been earmarked or segregated
Where only part of a larger bulk of property is to be held on trust, the trust may fail if there has been insufficient earmarking or segregation of the trust property.
Re London Wine Co (Shippers) Ltd  126 NLJ 977
Wine merchant held large stocks of wine in various warehouses. When customer order some wine it was intended that the bottles ordered should become the property of the customer and from that moment they would be held on trust for him by the company.
However, no beneficiary was able to identify which of the bottles were his or hers.
Oliver J held that the intended express trust failed for lack of certainty of subject matter because the wine ordered by the customers had not been separated from the general stock and therefore the subject matter of each trust could not be identified
The same requirement was affirmed and applied by the Privy Council in Re Goldcorp Exchange Ltd (In Receivership), where a company dealing in gold and other precious metals had used investors’ money to acquire bullion. The company had not appropriated or segregated any specific parcels of bullion to the individual purchasers, but rather held it in bulk.
The Privy Council held that it was not held on trust for the investors. The customers were, therefore, limited to a contractual claim against the company for the return of their investment
Trust of a share of a larger bulk
Hunter v Moss  1 WLR 452
Dillion LJ distinguished Re London Wine Co on the basis that unlike cases of wine or tangible property, the shares were indistinguishable from one another. Therefore no segregation is required as holding any of the shares would achieve the same thing
Decided before the decision had been given in Re Goldcorp Exchange Ltd.
It was therefore subject to criticism on the grounds that it is inconsistent with the decision of the Privy Council in Re London Wine Co (privy council so merely influential).
However, in Re Harvard Securities Ltd (In Liquidation), Neuberger J held that he was required to follow the decision in Hunter, and that it could be distinguished from the earlier cases on the grounds that it concerned shares and not chattels.- 381-4
Better basis for making a distinction is that property is sufficiently identified if a trust is declared of a defined fractional share of a clearly identifiable whole
A definition is too vague
In Palmer v Simmonds, for example, a testatrix attempted to create a trust of ‘the bulk of my said residuary estate’. Kindersley V-C held that this did not create a trust because the term ‘bulk’ did not identify a definite, clear, and certain part of her estate.
In Re Jones, it was held that a gift by a testator of the parts of his residuary estate which were not spent or disposed of by his wife did not create a trust.
In Anthony v Donges, a husband made a gift to his wife by will of ‘such minimal part of my estate of whatsoever kind and wheresoever situate save as aforesaid she may be entitled to under English law for maintenance purposes’. Lloyd J held that this provision was void for uncertainty on the grounds that it was impossible to determine what she was entitled to under English law for maintenance purposes.
A definition which lacks the clarity needed to identify the property intended to be subject to it will fail for uncertainty