THE LAW OF TRUST 331
(ii) Certainty as to intention
(i) The intention to create a trust may be by words or acts.
(ii) These are illustrations which show how a trust could be created by the acts of the author of the trust.
Illus.
(i) A father opening an account in his book in the name of his son in which money is credited in the name of his son.
9 Bom. 125
(ii) A buying shares in
5 Bom. 268
17 Col. 620 (628)
- Examples of trust created by words are unnecessary. The question is what kind of language is necessary to show there is a certainty to show that there was intention to create a trust—
(i) No technical expressions are needed for the creation of a trust The matter is one of construction. The question, therefore, which has to be determined is whether upon construction of the will or deed as a whole, the testator intended that the person to whom property was given should take as a mere trustee or should take beneficially, subject to a mere superadded expression of a wish or desire, which the testator may have thought would be sufficient to influence the donee, but which was not intended to and does not impose upon him any obligation. Question is did the author of the trust merely express a wish that the trustee should do a particular thing or did he impose an obligation upon him to do a certain thing. If an obligation was in fact intended then obviously he had the intention to create a trust.
(iii) The language used may be either precatory or imperative.
(i) The words request, recommend, desire, hope, etc., are precatory words.
(ii) Such words cannot be said to indicate an intention to create a trust, because they do not show an intention to impose an obligation upon the trustee.
(iii) Under the English Law such precatory words were held to constitute a trust and the trusts were called precatory trust. But the modern tendency is against.
(iii) Certainty as to beneficiary
- The beneficiary must be specified or described sufficiently as to be capable of identification.