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Almost any item of property, real or personal, can be made the subject of a trust. However, the trust instrument must allow the property to be identified clearly. In addition, if the trust property is to be allocated to a number of different beneficiaries, it must be clear from the outset how the allocation is to be made. Thus there are two elements to certainty of subject matter: certainty of trust property and certainty of beneficial interest. Both are questions of law (unlike certainty of intention, which is a question of fact). Consequently, precedent applies in the usual way.

Certainty of trust property

This element is easy enough to understand -- it must be clear which property is to be put into the trust. For example, in Palmer v Simmonds 1854 it was held that the expression 'the bulk of my said residuary estate' did not allow the subject matter to be identified, even though there was a clear intention to create a trust.

Modern practice is to avoid undoing a trust for uncertainty wherever possible. In Re Golay’s Will Trusts 1965, for instance, a trust to provide a 'reasonable income' was upheld. The justification is that rigid enforcement of the doctrine of certainty (pertaining to subject matter) can lead to outcomes unwanted by any parties to a trust agreement, which seems unjust. For example, early cases involving trusts of money often suggested that individual banknotes should be be identified. Most commentators came to regard this as an absurd situation. Since the courts are now keen to avoid invalidating a trust on the basis of uncertainty where there is no good reason to do so, they readily adopt a certain degree of flexibility, at least where intangible items are concerned.

In Hunter v Moss 1993, a case concerning the allocation of intangible items (in this instance, company shares), the Court of Appeal ruled that the appropriate test for certainty was whether, immediately after the declaration of trust, a court could attach an order to enforce the trust. However, both Hunter and Golay were later criticized for distinguishing earlier cases on the basis that they (Hunter and Golay) were concerned with trusts of intangibles when, in fact, the subject matter of these two trusts involved items that were essentially indistinguishable. The decisions in these cases seemed to imply that trusts involving tangible items remained subject to the earlier, inflexible rules. This suggestion may make perfect sense where the trust property is distinguishable from other property the settlor owns. For example, it would be quite unacceptable to allow a trust of 'a statue' to succeed where the settlor owned a collection of statues with no obvious way to determine which of these was intended. However, in situations such as Re London Wine (1975), where the very tangible trust property (in this instance, identical bottles of wine) happens to be composed of items that are indistinguishable, it is less obvious that the law should still require (as it does) that the settlor segregate the trust property from his own.

It can be argued, therefore, that there is no clear logical reason to distinguish trusts of indistinguishable goods from trusts of intangible goods, even if the law does just that. However, a reasonably credible counterargument might be that abolishing this distinction would leave the courts to judge whether particular goods were distinguishable or indistinguishable -- potentially a difficult and perilous thing to do.

Certainty of beneficial interest

This is a bit more complex. Not only must the identity of the trust property be certain, but so must the distribution of the rights and interests to this property amongst the different beneficiaries.

For example, in Boyce v Boyce (1849) a testator left four houses, the first to be chosen by a certain beneficiary and the remaining three then going to another one. In the event, the first beneficiary predeceased the testator, making it impossible to identify which three of the four houses should be settled. The court chose to uphold the principle that a beneficial interest should be precisely determined. In this instance, the uncertainty lay not in the trust property - this was clearly the four houses - but in the beneficial interest to be assigned. The effect of such uncertainty, the court held, was that a resulting trust correspondingly arose in favour of the settlor’s estate.

This certainly seems a harsh rule; the testator in this case wished to dispose of four houses and was not overly concerned with which went to whom. A reasonable alternative to the decision in Boyce v Boyce would have been to have one house, chosen by the executor, go to the testator's residual estate (thereby giving effect to the testator's intention), and then allowing the remaining three to go to the named beneficiary.

Consequences of uncertainty of subject matter

If the settlor fails to specify the trust property adequately but the property reaches the intended trustee, the trustee is entitled to the property absolutely. This is sometimes a harsh outcome for the intended beneficiaries, but there is no other logical solution. It might be felt that the transferee should hold the property on resulting or Constructive Trust, but there is simply no way to determine which portion is to be governed by the trust.

Consider a situation where

• X wills a large sum of money to Y, with the intention that Y holds ‘some money’ on trust for Z. If ‘some money’ is insufficiently precise to validate a trust in favour of Z, it equally lacks the precision to validate a resulting trust in favour of the settlor. Any trust whose subject matter is certain enough to form a resulting trust is certain enough to form the trust originally intended. In fact, the transferee in these circumstances is not a trustee at all; he is the recipient of a gift.

If the settlor specifies the trust property adequately but fails to make clear the allocation of beneficial interests to the intended beneficiaries, there is a resulting trust in favour of the settlor. In practice, the property will revert to the settlor’s estate, since the fact that the question of certainty arises at all is probably due to the settlor no longer being alive. This situation differs from the one in which the trust property is itself uncertain in that the intended transferee does in this instance become a trustee. However, he is now trustee of a resulting trust where the settlor (or his estate) is the beneficiary and not, as originally intended, trustee of an express trust favouring a designated set of third-party beneficiaries.