Although the express trust stands as a unique pillar of equity, focused dissections of the express trust category is often overlooked in favour of trusts created by operation of law. In effort to remedy this phenomenon, we will be putting out an entirely new mini-series all about express trusts to explore how the structure of an express trust, and the elements required for its valid creation, differ from that of its other equitable counterparts.

Introduction

While many have written on the salient features, characteristics, and history as they relate to resulting and constructive trusts, including myself, the same treatment in respect of express trusts is often overlooked.[1]  As a high-level overview, there are three broad categories of trusts:

• Express Trusts;
• Trusts by Operation of Law; and
• Statutory Trusts.[2]

As this is the first entry in the mini-series, this particular blog will first discuss how express trusts differ from the other two categories, before discussing the types of trusts that fall within the category of express trusts. Lastly, this blog will provide a high-level overview of the elements required for valid express trust creation; namely, the three certainties.

How Express Trusts Differ

Express trusts are trusts that are created intentionally.[3] This stands in contrast to trusts created by operation of law (i.e. resulting trusts and constructive trusts) because there is no manifest intention on the part of the settlor to create said trust.[4] Lastly, express trusts differ from statutory trusts because they do not require, or arise from, statute.[5]

What is Captured Within the Category of Express Trusts

Express Trusts for Persons & Purpose Trusts

At the outset, it is important to clarify what is included in the category of express trusts. Wherever the term express trust is employed, intuitively many people’s initial thoughts will be of an express trust for persons. While this is an entirely fair reaction, it is important to keep in mind that the category of express trusts also contains within it purpose trusts.

Purpose trusts are then further delineated between charitable and non-charitable purpose trusts. In order to keep this blog at a reasonable length, we shall only focus on express trusts for persons; nonetheless, given that they are both creatures of the express trust category much of what is detailed below will be applicable to purpose trusts.[6]

What is an Express Trust?

An express trust, like all trusts, is an equitable arrangement wherein one party is bound to deal with, manage, and administer property for the benefit of another.[7] Express trusts are created when there is an intention manifested to impose upon one or more persons an obligation to administer property which they hold in title for the benefit of persons.[8]

For an express trust to be validly constituted, the three certainties must be present at the time of creation. The three certainties are as follows:

• Certainty of intention;
• Certainty of subject matter; and
• Certainty of objects.[9]

1. Certainty of Intention

The certainty of intention, as the name suggests, requires that at the time of creation, the settlor held the requisite intention to create an equitable trust arrangement.[10]

While the above definition for certainty of intention appears awkward, each word was painstakingly scrutinized by this author because, as one may be able to glean from reviewing the relevant caselaw, there is not necessarily a uniform consensus on whether the certainty of intention is aimed at the settlor’s intention to settle property to another, whether the intention is aimed at imposing equitable duties onto a trustee, or whether the settlor’s intention to form a trust is sufficient to satisfy the certainty of intention.

Nonetheless, the below is relatively agreed upon as it pertains to certainty of intention:

• Certainty of intention requires more than the imposition of a moral obligation;[11]
• Certainty of intention may be implied or express;[12]
• Certainty of intention does not require technical language;[13] and
• Certainty of intention may be established by words or conduct.

Lastly, analysis of certainty of intention does not examine or look to the trustee’s intention at the time of creation. Although debatable, this author is of the view that acceptance by the trustee is not required to form a valid express trust.

2. Certainty of Subject Matter

Certainty of subject matter requires that the property subject to the trust obligation must, from the outset of the asserted trust, be clearly described or definitively ascertainable.[14] The essential requirement here is that the settlor must have clearly described the property which is to be the subject of the equitable trust arrangement to an extent that it can be definitively ascertained and this must be done at the time the trust is to come into existence.[15]

3. Certainty of Objects

Certainty of objects requires that the objects (or beneficiaries) of the trust must be sufficiently described to allow for the trustee to perform and abide by their equitable duties.[16] In the context of an express trust for persons, the certainty of objects holds that the beneficiary (or beneficiaries) of the trust must be sufficiently delineated by the settlor to allow for trust performance.[17]

This does not require that the beneficiaries be identified by name; rather, it is sufficient as long as the terms are clear enough that the trust obligations can be performed properly.[18] In circumstances where the settlor refers to intended beneficiaries by a class description, certainty of objects is established if it is possible to say who is or is not in the class, and to list all the persons who make up the class.[19]

Final Remarks

Ultimately, the validity of an express trust hinges on a clear shift from mere moral aspiration to a legally binding equitable obligation. By satisfying the three certainties, a settlor ensures the arrangement can be properly administered by the trustee. Understanding these foundational requirements is essential for distinguishing intentional private settlements from those arising by statute or operation of law, providing the necessary certainty for any robust estate or property management plan.

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[1] If you are interested in learning more about the resulting trusts, and the typology within the category of resulting trusts, check out my blog – here.

[2] Eileen E. Gillese, The Law of Trusts, 3rd ed (Toronto: Irwin Law, 2014) at 1-5.

[3] Knight v Knight (1840), 3 Beav 148, 49 ER 58 (Ch) (“Knight v Knight”); Duca Financial Services Credit Union Ltd. v. Bozzo, 2011 ONCA 455 (CanLII), at para 2.

[4] Donovan WM Waters, “The Doctrine of Resulting Trusts in Common Law Canada” (1970) 16 McGill LJ 187 at 191.

[5] Eileen E. Gillese, The Law of Trusts, 3rd ed (Toronto: Irwin Law, 2014) at 33.

[6] Stay tuned for the up-coming blog all about purpose trusts!

[7] Underhill and Hayton, Law of Trusts and Trustees, 18th ed (LexisNexis, 2010), Chapter 1, Article 1.

[8] Ibid., at 1.

[9] Knight v Knight; see also Tillsonburg Scout Association v. Scouts Canada, 2020 ONSC 747 (CanLII), at para 22 (“Tillsonburg Scout Association”).

[10] Tillsonburg Scout Association, at paras 29-30; see also Rubner v. Bistricer, 2019 ONCA 733 (CanLII), at para 52 (“Rubner”).

[11] Firepower Debt GP Inc. v. TheRedPin, Inc., 2019 ONCA 903 (CanLII), at para 11.

[12] Rubner, at para 53.

[13] Ibid.

[14] Tillsonburg Scout Association, at para 32; Angus v. Port Hope (Municipality), 2017 ONCA 566, at para 112 and 117 (“Angus”).

[15] Rubner, at paras 57-58.

[16] Tillsonburg Scout Association, at para 33; Rubner, at para 59; Angus, at paras 120-121.

[17] Rubner, at para 59; Wai-Keung Kwan v Kalsang, 2025 ONSC 124, at para 113 (“Wai-Keung Kwan”).

[18] Wai-Keung Kwan, at para 114.

[19] Ibid.