George v Webb & ors  NSWSC 1608. Ward J.
214 It is clear that the onus of proof lies on those who assert that a trust was created ( Peter Cox Investments, at ; Re Armstrong (1960) VR 202; In the matter of Travel House of Australia Pty Ltd; Browne v The Deputy Commissioner of Taxation ( Murray J, Supreme Court of Victoria, 1978, unreported).
215 In the present case, there is no uncertainty as to the subject matter of the trust (it is the sum deposited by Mrs George). The question is whether the intention to create a trust, and the object of the trust (ie the purpose for which the money was to be used, is sufficiently clear).
216 In On Equity , at [6.180]) the "three certainties" are as described in Knight v Knight (1840) 3 Beav 148, at 172-173; (1840) 49 ER 58, at 68, where Lord Langdale MR stated:
As a general rule, it has been laid down, that when property is given absolutely to any person, and the same person is, by the giver who has power to command, recommended, or entreated, or wished, to dispose of that property in favour of another, the recommendation, entreaty, or wish shall be held to create a trust.
First, if the words are so used, that upon the whole they ought to be construed as imperative;
Secondly, if the subject of the recommendation or wish be certain; and
Thirdly, if the objects or persons intended to have the benefit of the recommendation or wish be also certain.
or as described in Wright v Atkyns (1823) Turn & R, at 157; (1823) ER 1051, at 1056:
In order to determine whether the trust is a trust this Court will interfere with, it is matter of observation,
First, that the words must be imperative, that the words are imperative in this case there can be no doubt;
Secondly, that the subject must be certain, and that brings me to the question what is meant by the words "the property"; and
Thirdly, that the object must be as certain as the subject, and then the question will be, whether the words "my family" have as much of the quality of certainty, as this species of trust requires.