Trust? Three Certainties Must Be Present | Disinherited Estate Litigation

Trust? Three Certainties Must Be Present

PKMB v DHL 2018 BCSC 186 provides an overview of the law of trusts, including the required presence of the “three certainties” in order to vest a trust.

The three certainties must be established on the evidence: the certainty of intention, the certainty of subject matter, and the certainty of objects.

In Bankruptcy of Taylor Ventures LTD(554925 BC LTD) 2004 BCSC 1612 the three certainties were described as follows:

1) Certainty of Intent

It must be established that there was a clear intent to create a trust , the language used by the set floor must be imperative, and the intention of the set floor of the trust must be ascertained at the time of the settling of the property transferred upon the trustee. For the trust to be valid, the certainty of intent must be made known to the trustee. -Re-New Home Warranty of British Columbia 2000 29 CBR 232 BCSC

2) Certainty of Subject Matter

A trust cannot be established if the subject matter of the alleged trust is undefined Robinson v Manitoba (1986) 61 CBR 21 (Manitoba CA)

3) Certainty of Object

The beneficiaries must be clearly identified as must the way in which the property is to be applied. There must be no uncertainty as to whether a person is a beneficiary. If a description of a class of beneficiaries is used, the description must be certain and it must be possible to ascertain who are the members of the class and the total membership in the class. Re Eron Mortgage Corp. (1999) 10 CBR 257 (BCSC)

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 45 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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