Three Certainties - Uncertainty

Uncertainty

Where there is not sufficient clarity, the trust may be held void as uncertain. The applicable forms of uncertainty have been categorised as:

1. Conceptual uncertainty.
2. Evidential uncertainty.
3. Ascertainability.
4. Administrative unworkability.

Conceptual uncertainty is the "most fundamental in the validity of a trust or power", and is where the language used in the trust is unclear. Examples include where familiar but overly vague terms are used, such as "good customers" or "useful employees"; if the concept cannot be certain, the trust fails. Evidential uncertainty, on the other hand, is where there is a question of fact it is impossible to answer, such as when a claimant cannot prove he is a beneficiary. This does not necessarily invalidate the trust, as Jenkins LJ said in Re Coxen:

I must keep in mind the distinction between uncertainty as to the events prescribed by the testator...in which the condition...is to operate (which is generally speaking fatal to the validity of such a condition) and difficulty in ascertaining whether those events...have happened or not, which is not necessarily fatal to such a validity.

The next type of uncertainty, ascertainability, is where it is impossible to find the beneficiaries, either because they have died, moved or changed names. This is not necessarily fatal; the test for deciding if it is or not was laid out by Wynn-Parry J as: "mere difficulty of ascertainment is not of itself fatal to the validity of the gift. As has been pointed out, it is a matter of degree, and it is only when one reaches, on the evidence, a conclusion that it is so vague or that the difficulty is so great that it must be treated as virtually incapable of resolution, that one is entitled, to my mind, to say that a gift of that nature is void for uncertainty". If a beneficiary cannot be found despite strenuous steps to find one, the trustees can apply for a Benjamin Order, named after the case of Re Benjamin, which authorises them to distribute the property as if the beneficiary is dead. The final type of uncertainty is administrative unworkability — where the trust is, by its very nature, so impractical that the trustees cannot carry out their duties. Where this prevents the trustees carrying out their duties, the trust will be declared invalid, and not applied.