Contents▾
Chapter Purpose
Chapter 12 develops the fourth of the five substantive elements of trust creation: the requirement that a private trust have definite or ascertainable beneficiaries. UTC § 402(a)(3), (b); Restatement (Third) of Trusts §§ 44–47. Chapters 9–11 fixed the constitutive act, the settlor's capacity, and the res. The present chapter fixes the persons for whose benefit the res is held — the holders of the equitable interest without whom the fiduciary office has no correlative to enforce. It states the beneficiary principle in its classical form and in its modern American formulation; it develops the doctrinal reason for the principle in the enforcement rationale; it treats individual and class designations and the certainty-of-objects requirement that governs each; it develops the doctrinal treatment of fixed and discretionary interests at foundational depth, reserving administrative depth to Volume II; it treats the charitable-trust exception at introductory depth, the honorary trust at doctrinal depth, and the modern statutory validation of pet and purpose trusts under UTC §§ 408–409; and it fixes the enforcement mechanism that makes the requirement operative in practice. Each section states not only who may take under a trust but why the law requires an enforceable beneficial interest as a validity element of the private trust.
Principal Research Sources
Master Research Dossier v1.1, §4 (Institutional Analysis — the beneficiary principle as the enforcement-based correlate of the fiduciary office; the two doctrinal formulations of the certainty-of-objects requirement for fixed and discretionary trusts; the exceptions to the beneficiary principle and their common enforcement rationale); §2 (Authority Analysis — Morice v. Bishop of Durham (1804) as the historical statement of the beneficiary principle; Knight v. Knight (1840) as the source of the three certainties; McPhail v. Doulton (1971) on the "is or is not" test for discretionary trusts; Re Denley's Trust Deed (1969) on ascertainable-benefit trusts; the American cases applying and refining the principle); §7 (Treatise Analysis — Scott & Ascher §§ 12.1–12.11, Bogert & Hess §§ 161–182, Restatement (Third) §§ 44–47, Loring & Rounds ch. 3); §10 (Authority Matrix — UTC §§ 103(3) (beneficiary defined), 402(a)(3) (definite beneficiary requirement), 402(b) (power in trustee to select from indefinite class), 402(c) (trust for animal or valid purpose), 405 (charitable trusts), 408 (trust for the care of an animal), 409 (noncharitable trust without ascertainable beneficiary); Restatement (Third) of Trusts §§ 44 (necessity of beneficiary), 45 (definite beneficiary requirement; class gifts), 46 (indefinite beneficiaries; power of selection), 47 (honorary trusts; animal and purpose trusts)); §11 (Discrepancy Register — the divergence between the English rule of Re Baden (No. 2) and the modern American Restatement in the treatment of conceptual and evidential uncertainty; the statutory validation of pet trusts in all fifty American jurisdictions; the doctrinal status of the traditional "honorary" trust in states that have adopted UTC § 409 and in states that have not).
Canonical Part Structure Applied
Chapter 12, as a doctrinal chapter within Part Four (Creation), develops a reduced Part set under the Canonical Treatise Architecture: Part I (Foundations, in its doctrinal-institutional aspect — the beneficiary principle); Part II (Legal Nature, at doctrinal depth — the certainty-of-objects requirement and the fixed/discretionary distinction); Part III (Creation, at doctrinal depth — class designations, powers of selection, and the enforcement mechanism); and Part IX (Defenses / Exceptions, at doctrinal depth — the charitable-trust, honorary-trust, and statutory purpose-trust exceptions). The remaining Parts are omitted rather than fabricated.
- Part IV (Operation) — omitted. The administration of fixed and discretionary interests is reserved to Volume II.
- Part V (Transfer) — omitted. Alienation of beneficial interests is reserved to Volume II.
- Part VI (Rights and Duties) — omitted. Foundational treatment appears in Chapters 7–8.
- Part VII (Procedure) — omitted. Reserved to Volume II.
- Part VIII (Enforcement) — foundational treatment appears in Chapter 8 and at §12.09 of this chapter.
- Part X (Related Doctrines) — omitted. Cross-referenced to Chapters 20–21 for remedial consequences and Chapter 19 for charitable trusts.
- Part XI (Practical Application) — omitted. Applied drafting of class designations, discretionary standards, and pet-trust provisions is reserved to Volume II.
Reader Orientation
A reader completing this chapter should be able to state the beneficiary principle in its classical Morice v. Bishop of Durham formulation and in its modern American Restatement/UTC formulation; explain the enforcement rationale that supplies the doctrinal reason for the principle; distinguish the certainty-of-objects standard for fixed-interest trusts from the standard for discretionary trusts and state each; identify what constitutes an individual beneficiary and what constitutes a class, and state the class-ascertainability rule at foundational depth; distinguish an ordinary discretionary trust from a power of appointment, and state the doctrinal significance of the distinction for the beneficiary requirement; state the two principal exceptions to the beneficiary principle — the charitable-trust and the honorary-trust exceptions — and the enforcement substitute that each supplies; state the modern statutory position of pet and noncharitable purpose trusts under UTC §§ 408–409; and state the doctrinal consequences of a private trust that fails for want of ascertainable beneficiaries. Administrative and procedural detail — the operation of trust-directed powers, class-closing rules in complex family instruments, the interaction with the Rule Against Perpetuities, and the practical operation of pet-trust enforcers — is reserved to Volume II.
The Beneficiary Principle
The fourth of the five substantive elements of trust creation is that the private trust have definite or ascertainable beneficiaries. Restatement (Third) of Trusts § 44; UTC § 402(a)(3). The classical formulation is Sir William Grant's in Morice v. Bishop of Durham, 9 Ves. Jr. 399 (Ch. 1804): "There must be somebody, in whose favour the Court can decree performance." The principle is not a mere drafting requirement but a doctrinal condition on the trust's existence: a private trust without ascertainable beneficiaries has no correlative to the trustee's fiduciary office, and the fiduciary office cannot exist in a vacuum. The requirement is coordinate with the res requirement of Chapter 11 and with the fiduciary-office analysis of Chapter 8: property held by a trustee under duties owed to no one is not held in trust; it is held in a legal vacuum that neither equity nor the common law will maintain.
Two related propositions follow. First, the beneficiary principle is a rule of the private trust, not of the trust generally: the charitable trust, the honorary trust, and the modern statutory purpose trust are exceptions that operate under distinct enforcement arrangements, developed at §§12.06–12.08 below. Second, the beneficiary need not be ascertained at the moment of manifestation but must be ascertainable — that is, capable of being identified when the beneficial interest is to take effect. A trust "for my children living at my death" satisfies the principle at the moment of the settlor's declaration even though the identity of the children is not fixed until the settlor's death; the description supplies the standard by which the beneficiaries will be objectively ascertained when the standard operates. The distinction between ascertained and ascertainable beneficiaries is the doctrinal foundation of every certainty-of-objects question.
The Enforcement Rationale
The doctrinal reason for the beneficiary principle is the enforcement rationale. A trust is an equitable relationship enforceable against the trustee by the beneficiary. Restatement (Third) of Trusts § 44 cmt. b. Where there is no ascertainable beneficiary, there is no person entitled to compel the trustee's performance and no person against whom the court's decree can operate. The trust becomes a private disposition without a correlative enforcement mechanism, and equity, whose whole business is the enforcement of conscientious obligations, has no obligation to enforce. The Chancery of Morice v. Bishop of Durham refused to enforce a residuary bequest to "such objects of benevolence and liberality as the Bishop of Durham should approve" precisely because no beneficiary could compel the Bishop's discretion; the objects were undefined and the trust accordingly failed for want of enforcement.
The enforcement rationale explains both the principle and its exceptions. The charitable-trust exception, treated at §12.06, is doctrinally coherent because the Attorney General, or the state officer to whom the enforcement authority is delegated, stands in the beneficiary's place: there is somebody in whose favour the court can decree performance, and the somebody is the public in whose interest the charity is administered. The honorary-trust exception, treated at §12.07, is a more limited accommodation: the trustee's willingness to perform is accepted in lieu of an enforcement action, and the trust operates on the trustee's honour rather than on equity's decree. The modern statutory pet-trust and purpose-trust provisions of UTC §§ 408–409, treated at §12.08, close the enforcement gap by naming an enforcer authorized to compel the trustee's performance. Each exception preserves the enforcement rationale by supplying an enforcement mechanism the private trust would otherwise lack.
Certainty of Objects — Fixed-Interest Trusts
Where the trust confers fixed shares on identified persons or on the members of a defined class, the certainty-of-objects requirement demands that every beneficiary be capable of identification at the moment the interest is to take effect. Restatement (Third) of Trusts § 45. In a trust "to A for life, remainder to A's children in equal shares," the requirement is satisfied at the settlor's declaration if A and A's children are identifiable persons; the class of A's children closes at A's death, and the shares are then calculated arithmetically. In a trust "in equal shares to my nieces and nephews living at my death," the identifiability is measured at the settlor's death; if the class can then be exhaustively enumerated, the trust is valid. The doctrinal rule is that a fixed-interest trust requires a "complete list" of beneficiaries: the trustee must be able to identify every person entitled to a share, because the calculation of the shares depends on the enumeration of the whole.
Failure of the complete-list rule produces failure of the trust as to the affected disposition. Where the trust is "to my friends in equal shares," the term "friends" admits of no objective enumeration and no arithmetical calculation of shares is possible; the trust fails as to that gift. Clark v. Campbell, 82 N.H. 281 (1926), the leading American case, held such a disposition invalid because the trustees could not identify the beneficiaries with the definiteness the fixed-interest form requires. The property returns to the settlor's estate under a resulting trust developed at Chapter 20. The doctrinal moral of Clark v. Campbell is that the fixed-interest form is inflexible: a settlor who wishes to benefit an ill-defined group must either define the group with objective criteria that permit enumeration or adopt the discretionary form, treated in the next section, which relaxes the enumeration requirement in exchange for restrictions on the beneficiaries' entitlement.
Certainty of Objects — Discretionary Trusts
Where the trustee holds discretion to distribute among the members of a defined class in such amounts and at such times as the trustee determines, the certainty-of-objects requirement is doctrinally distinct from the fixed-interest rule. Restatement (Third) of Trusts § 46. The modern rule, articulated by the House of Lords in McPhail v. Doulton, [1971] A.C. 424, and substantially adopted by the American Restatement, is the "is or is not" test: the trust is valid if it can be said with certainty of any given person whether that person is or is not a member of the class. The trustee need not enumerate every member; the trustee must be able, when a candidate for distribution is presented, to determine whether the candidate qualifies. The rationale is that the discretionary trust does not require an arithmetical calculation of shares; the trustee's discretion selects among qualifying members, and enumeration of the whole is unnecessary to the exercise of that discretion.
The "is or is not" test tolerates evidential uncertainty — the possibility that a particular candidate's status may be difficult to prove — but not conceptual uncertainty — the absence of an objective standard by which membership can be judged at all. A trust "for such of my employees, former employees, and their dependents as the trustees shall in their discretion select" satisfies the test: each of the terms is conceptually definite; particular candidates may present difficult evidential questions, but the class-membership standard is objective. A trust "for such persons as the trustees consider deserving" does not: the term "deserving" supplies no objective standard, and the trustees' selection would be governed by nothing more than their own preferences. The American Restatement's treatment, at § 46, tracks McPhail v. Doulton in substance while integrating the test into the broader framework of powers of selection developed in the next section.
Class Designations and Powers of Selection
The modern American doctrine coordinates the certainty-of-objects requirement with the trustee's power to select among the members of a designated class. UTC § 402(b) provides that a trust for the benefit of an indefinite class of beneficiaries is valid if the trustee is authorized to select from among the members of the class and the trustee's power is exercised within a reasonable period; where the power is not exercised, the property returns to the settlor's successors under a resulting trust. Restatement (Third) of Trusts § 46 states the same rule and specifies that the trustee's failure to exercise a discretionary power within a reasonable time entitles the beneficiaries or the court to intervene. The provision is a modest American extension of the beneficiary principle: it validates trusts whose class definition would fail the fixed-interest rule so long as an enforcement path — the trustee's power of selection, supervised by the court — is available.
The doctrinal distinction between a trust with a power of selection and a mere power of appointment held by the trustee is important. A power of appointment held by a non-trustee is not subject to fiduciary duties and is not enforceable at the suit of any potential appointee; the donee of the power may exercise it or not, at pleasure, and the property in default of appointment passes as the instrument directs. A power of selection held by a trustee, by contrast, is a fiduciary power: the trustee is under a duty to consider its exercise, and the court may compel consideration where the trustee fails to act. UTC § 402(b) validates the fiduciary-power form and, in doing so, preserves the enforcement rationale: even though the beneficiaries cannot compel a specific distribution, they or a court may compel the trustee to consider the exercise of the power, and the enforcement mechanism the beneficiary principle requires is preserved.
The Charitable-Trust Exception
The most important exception to the beneficiary principle is the charitable trust, treated at introductory depth here and at doctrinal depth in Chapter 19. A charitable trust is valid notwithstanding the absence of ascertainable individual beneficiaries; the trust's charitable purpose — the relief of poverty, the advancement of education or religion, or the promotion of another purpose that the law recognizes as charitable — supplies the beneficial content, and the state Attorney General (or equivalent public officer) supplies the enforcement mechanism. UTC § 405; Restatement (Third) of Trusts §§ 28, 94. The exception is coherent within the beneficiary principle rather than an exception to its rationale: the enforcement gap that the beneficiary principle exists to prevent is closed by the Attorney General's standing, and the public interest in the charitable purpose supplies the substantive equivalent of the beneficial interest.
Two doctrinal points bear notice at foundational depth. First, the charitable purpose must be a purpose recognized by law as charitable; a settlor's private designation of a purpose as "charitable" is not conclusive. The catalogue of recognized charitable purposes is treated in Chapter 13 and Chapter 19; for present purposes the point is that the exception to the beneficiary principle attaches only to purposes within the recognized catalogue. Second, the charitable-trust exception does not entirely dispense with the ascertainability inquiry: where the settlor's charitable purpose is stated with sufficient definiteness that the Attorney General and the court can determine what the trustee is required to do, the trust is valid; where the purpose is stated so vaguely that no such determination is possible — as in the residuary in Morice v. Bishop of Durham — the trust fails, and the property returns to the settlor's estate under a resulting trust. The exception thus preserves the ascertainability principle at the level of purpose while relaxing it at the level of beneficiary.
The Honorary-Trust Exception
The historical common law developed a narrow accommodation for a class of dispositions that satisfied neither the beneficiary principle nor the charitable exception — the so-called honorary trust. Restatement (Third) of Trusts § 47. The paradigmatic examples are the trust for the erection or maintenance of a tomb or grave marker, the trust for the care of a specific animal, and the trust for the celebration of religious rites not amounting to a charitable purpose. The honorary trust was recognized on the theory that the trustee's willingness to perform the specified act should not be defeated where no beneficiary was available to compel performance and no public interest was engaged that would attract the charitable exception. In re Searight's Estate, 87 Ohio App. 417 (1950), applied the doctrine to a testamentary trust for the care of the testator's dog, upholding the arrangement as an honorary trust the trustee was permitted, but not required, to perform.
The honorary trust operates on the trustee's honour: if the trustee is willing to perform, the trust is valid and the trustee's performance is protected; if the trustee is unwilling to perform, no one can compel performance, and the property returns to the residuary estate under a resulting trust. The doctrine's traditional limitations are three. First, the purpose must be one the law is willing to countenance — the tomb, the animal, the religious rite — and cannot be a purpose that is illegal, against public policy, or capricious. Second, the trust is subject to the Rule Against Perpetuities: an honorary trust that might operate beyond the perpetuities period is void. Third, and most consequential in modern practice, the honorary trust is doctrinally fragile: because no one has standing to compel performance, the arrangement collapses at the trustee's option and is not the reliable instrument the settlor may have desired. The modern American solution, treated in the next section, is the statutory pet-trust and purpose-trust provisions of UTC §§ 408–409, which supply an enforcement mechanism and thereby remove the honorary trust's principal weakness.
Statutory Pet and Purpose Trusts
The Uniform Trust Code closes the enforcement gap of the honorary trust by two provisions of pathbreaking modern significance. UTC § 408 validates a trust for the care of an animal alive during the settlor's lifetime, terminates the trust on the death of the animal (or the last surviving animal, where several are named), and provides that the trust may be enforced by a person appointed in the terms of the trust or, in default of appointment, by a person appointed by the court; the section also authorizes the court to reduce the amount of property held in the trust if the amount substantially exceeds what is required for the animal's care. UTC § 409 validates a noncharitable trust for a purpose that is neither illegal nor contrary to public policy, subject to a twenty-one-year duration limit and enforceable by a person named in the instrument or by the court. Restatement (Third) of Trusts § 47 accepts and integrates both provisions.
The statutory validation preserves the beneficiary principle's enforcement rationale while accommodating the settlor's non-standard purposes. Because the statute names an enforcer, there is somebody in whose favour the court can decree performance, and the historical objection to the honorary trust — that its operation depended on the trustee's willingness — is answered. The provisions have been adopted, in some form, in every American jurisdiction, and the pet trust in particular has become a settled feature of modern estate practice. Two limitations remain. First, the purpose must not be illegal or contrary to public policy — the traditional constraint on capricious dispositions preserved by both §§ 408 and 409. Second, the twenty-one-year duration limit under § 409 (and the animal-lifetime limit under § 408) preserves the Rule Against Perpetuities' concern with the tying-up of property in perpetuity. Applied drafting of the enforcer designation and administrative practice under the statutes is reserved to Volume II.
The Enforcement Mechanism
The beneficiary requirement's operative content is the availability of a person entitled to compel the trustee's performance. Restatement (Third) of Trusts § 44 cmt. c. In the ordinary private trust, that person is the beneficiary, who holds the equitable interest and has standing to sue for the trustee's breach; the enforcement mechanism is the equitable action for accounting, for surcharge, for removal, and for the specific remedies of Volume II. In the charitable trust, the Attorney General stands in the beneficiary's place under UTC § 110 and the parallel state statutes. In the statutory pet trust or purpose trust, the enforcer designated in the terms of the trust or appointed by the court stands in the beneficiary's place under UTC §§ 408(c), 409(2). Chapter 8's development of the beneficiary's role as the enforcement pole of the tripartite trust structure is the operative doctrinal reference.
The enforcement analysis unifies the treatment of the beneficiary principle and its exceptions. Every valid trust — private, charitable, or purpose — has a person capable of enforcing the trustee's duties. What the beneficiary principle rules out is not the absence of a beneficiary as such but the absence of an enforcement mechanism: a private trust for indefinite "objects of benevolence and liberality" fails not because no one benefits but because no one is entitled to compel the trustee's performance. The doctrinal work of §§ 405, 408, and 409, and of the corresponding Restatement provisions, is to supply an enforcement mechanism in categories of case in which the beneficiary principle would otherwise fail. The unifying rule is the enforcement rationale of Morice v. Bishop of Durham stated at §12.02: there must be somebody in whose favour the court can decree performance.
Consequences of Failure for Want of Ascertainable Beneficiaries
Where a private trust fails for want of ascertainable beneficiaries — because the class is conceptually uncertain, because the description admits of no objective enumeration in a fixed-interest disposition, or because the trust falls outside the charitable and statutory purpose-trust exceptions — the doctrinal consequence is that no trust of the kind claimed ever validly existed. Restatement (Third) of Trusts § 44 cmt. e. The property returns to the settlor or the settlor's successors under a resulting trust developed at Chapter 20; where the failure was procured by wrongful conduct, the constructive-trust remedy of Chapter 21 may operate. The purported trustee, if property was in fact transferred, holds the property on resulting trust for the transferor and must return it; the purported beneficiaries have no equitable interest to enforce, because the manifestation from which such an interest would flow was doctrinally invalid at its inception.
The remedial pattern coordinates with the parallel patterns developed for failures of intent (Chapter 9 §9.09), capacity (Chapter 10 §10.09), and the res (Chapter 11 §11.08). The four validity elements share a common remedial architecture: where any element fails, the purported trust does not exist; the property returns to the transferor under a resulting trust; and where equity requires, a constructive trust is imposed. The uniformity of the remedy reflects the uniformity of the underlying doctrine: the private trust exists only when all elements are satisfied, and any deficiency has the same doctrinal consequence.
Key Principles
A private trust must have definite or ascertainable beneficiaries; the requirement is a validity element, not a mere drafting nicety. UTC § 402(a)(3); Restatement (Third) of Trusts § 44.
The doctrinal reason for the requirement is the enforcement rationale of Morice v. Bishop of Durham: there must be somebody in whose favour the court can decree performance.
Fixed-interest trusts require a complete list of beneficiaries; a trust in equal shares to an unenumerable class fails. Clark v. Campbell.
Discretionary trusts satisfy the certainty-of-objects requirement if it can be said of any given person that they are or are not a member of the class. McPhail v. Doulton; Restatement (Third) § 46.
UTC § 402(b) validates fiduciary powers of selection over indefinite classes; the enforcement mechanism is the court's power to compel the trustee's consideration.
The charitable-trust exception dispenses with individual beneficiaries; the Attorney General supplies the enforcement mechanism. UTC § 405; see Chapter 19.
The honorary-trust doctrine tolerates limited non-charitable purpose dispositions but operates on the trustee's honour and is doctrinally fragile.
UTC §§ 408–409 validate pet and noncharitable purpose trusts by naming an enforcer, thereby closing the honorary trust's enforcement gap.
Failure for want of ascertainable beneficiaries produces a resulting trust for the settlor's successors; the constructive-trust remedy operates where equity requires.
Cross-References
Backward, within Volume I.
- Chapter 7 §§7.01–7.05 → §§12.01, 12.09 (equitable title; beneficiary as its holder)
- Chapter 8 §§8.03–8.05 → §12.09 (enforcement role of the beneficiary)
- Chapter 9 §9.03 → §§12.01, 12.03 (Knight v. Knight; three certainties)
- Chapter 11 §11.01 → §12.01 (res and beneficiary as the two poles of the dual-title structure)
Forward, within Volume I.
- §12.01 → Chapter 13 (lawful trust purposes; the purpose element of trust creation)
- §12.06 → Chapter 19 (private and charitable trusts developed at doctrinal depth)
- §§12.07–12.08 → Chapter 19 (honorary and statutory purpose trusts within the private/charitable classification)
- §12.10 → Chapters 20–21 (resulting and constructive trusts as remedial consequences)
Forward, to Volume II. Applied doctrine — the drafting of class designations, the administration of discretionary interests and their coordination with income-tax and creditor-rights rules, the operation of pet-trust enforcers, class-closing rules, and the interaction of the beneficiary requirement with the Rule Against Perpetuities — is reserved to Volume II. Volume II presupposes the beneficiary framework fixed here.
Transition to Chapter 13
Chapter 12 has fixed the fourth element of trust creation: the requirement that a private trust have definite or ascertainable beneficiaries, subject to the charitable-trust and statutory purpose-trust exceptions. Chapter 13 takes up the fifth and final element: the requirement of a lawful trust purpose. Where the beneficiary requirement identifies the persons for whose benefit the trust operates, the purpose requirement identifies the design according to which the trust property is to be applied — the substantive content that the settlor's manifestation, capacity, res, and beneficiaries collectively serve. With Chapter 13 the five elements of trust creation will be complete, and Part Four will yield to Part Five's treatment of the formalities in which those elements are expressed.
Primary sources
- Uniform Trust Code (2000, as amended)
- Restatement (Third) of Trusts (2003–2012)