Certainty of intention and precatory words

An express trust requires certainty of intention. In Paul v Constance [1977] 1 WLR 527, the Court of Appeal accepted the statement in Snell that the words relied on 'must be so used that on the whole they ought to be construed as imperative', while also noting that no particular form of expression is necessary if on the whole it can be gathered that a trust was intended. Scarman LJ accepted that there must be clear evidence from what is said or done of an intention to create a trust. Eleanor's gift is expressed to be absolute, and the words 'in the hope and confidence that she will use it as she sees fit' express a hope and leave the matter to Joan's discretion; they do not impose a binding obligation. Read as a whole, the will shows no intention to create a trust, so Joan takes the money absolutely, subject at most to a moral obligation.

Why A is wrong: Although no particular form of words is required, the words used must still, on the whole, be imperative; here they are not.

Why C is wrong: The court construes the words actually used; it will not impose a trust merely because the testator hoped the family would benefit.

Why D is wrong: The gift to Joan is itself clear and absolute; the absence of a trust does not make the gift fail.

Why E is wrong: A resulting trust does not arise because the property was effectively given to Joan outright; there is no failed trust to result back.