Trusts SQE1 Revision Guide: Certainties and Implied Trusts

Trusts is the FLK2 subject that quietly punishes candidates who think they understand it. The doctrines feel intuitive on a first read — someone holds property for someone else, fine — and then the single-best-answer question gives you a half-finished family arrangement, a vague letter from a dead testator, and four options that all look plausible. Suddenly "intuitive" isn't enough.

The good news: the examinable core of Trusts for SQE1 is narrow and well-defined. If you can apply the three certainties cleanly, and you can tell a resulting trust from a constructive one without hesitating, you've covered a disproportionate share of the marks. This guide walks through exactly that, with the fact patterns the SRA loves and the slips that cost people answers.

Why Trusts feels harder than it should on SQE1

Equity doesn't read like the rest of the FLK2 syllabus. Property Practice and Solicitors Accounts have a procedural skeleton you can hang facts on. Trusts asks you to spot an intention that the parties themselves may never have articulated — and then to decide whether the law fills the gap with a trust, a gift, or nothing at all.

That's the real skill being tested. Not "recite the three certainties" — anyone can do that — but "look at this messy scenario and decide which doctrine actually bites". The questions are short. The reasoning required is not.

One structural point worth holding onto. SQE1 is two separate assessments, FLK1 and FLK2, each 180 single-best-answer questions sat in two sessions of 2h 33m. Trusts lives in FLK2 alongside Land Law, Wills and the Administration of Estates, Property Practice, Solicitors Accounts and Criminal Law and Practice. Trusts and Land overlap constantly in the question bank, so don't revise them in separate silos — the co-ownership questions in particular blur the line between the two.

The three certainties: the gateway to every express trust

An express trust does not exist unless all three certainties are present. Get this framework automatic, because a surprising number of questions are really just a certainties problem wearing a costume.

Certainty of intention

The settlor must have intended to create a trust — to impose a binding obligation, not merely express a hope. No magic words are needed; "trust" need never be used. Equally, using the word "trust" doesn't guarantee one exists. The court looks at substance.

The classic battleground is precatory language — words of wish, hope, desire or confidence. "In the full confidence that she will do what is right" looks warm and binding to a layperson and means precisely nothing in law. Compare that with "to hold on trust for my children equally", which imposes a clear obligation. The leading authorities draw the line between an enforceable duty and a moral nudge, and the SRA will test whether you can spot the difference in a single sentence.

Certainty of subject matter

Two limbs here, and candidates routinely forget the second.

• The trust property must be identifiable. "My estate" is fine. "The bulk of my estate" is not — it fails because "bulk" cannot be quantified.
• The beneficial interests must be certain. Even if the property is clear, the trust fails if you can't work out who gets how much.

There's a well-known wrinkle on tangible versus intangible property. A declaration of trust over "50 of my 950 shares" can be valid because shares of the same class are indistinguishable — any 50 will do. Try the same with "50 bottles from my wine cellar" and it may fail, because bottles are not interchangeable in the same way; you'd need to identify which 50. Keep that distinction in your back pocket; it appears more often than it has any right to.

Certainty of objects

The beneficiaries must be certain, and the test depends on the kind of trust:

• Fixed trust (set shares for set people): you need a complete list of every beneficiary. This is the complete list test.
• Discretionary trust (trustees choose who benefits from a class): you apply the is or is not test — can you say of any given individual whether they are or are not within the class?

Watch for conceptual versus evidential uncertainty. "My friends" is conceptually uncertain — there's no clear definition of friendship — and that's usually fatal. "My employees" is conceptually clear even if the records are incomplete; evidential gaps don't necessarily sink the trust. Administrative unworkability is a further, separate hurdle for very wide discretionary trusts.

If you remember one thing about certainty of objects, make it this: identify whether the trust is fixed or discretionary before you reach for a test. Half the wrong answers come from applying the complete list test to a discretionary trust.

Worked example: spotting the failure

A testator's will leaves £200,000 "to my trustees to distribute among such of my old colleagues as they shall in their absolute discretion think fit". Separately, he leaves his house "to my wife, trusting that she will leave it to our daughter in due course".

Work through it. The £200,000 gift is discretionary, so objects are tested by "is or is not". "Old colleagues" is arguably conceptually uncertain — who counts as a colleague, and how old is old? — so there's a real risk the objects certainty fails and the £200,000 results back to the estate. The house gift uses "trusting that", classic precatory language: no certainty of intention, so the wife takes the house absolutely and the daughter takes nothing. Two gifts, two different certainties failing, one fact pattern. That's the shape of an SQE1 trusts question.

Resulting trusts: when the beneficial interest bounces back

A resulting trust arises by operation of law — nobody declares it — and the beneficial interest "results" (jumps back) to the person who provided it. There are two examinable categories.

Automatic resulting trusts

These arise where an express trust fails or doesn't exhaust the beneficial interest. The settlor put property into trust, but for some reason equity can't give it all to the intended beneficiaries — perhaps a certainty failed, or the purpose became impossible, or there's surplus left over. The undisposed-of interest results back to the settlor (or their estate).

So the £200,000 in the example above, if objects certainty truly fails, doesn't vanish — it's held on automatic resulting trust for the residuary estate. This is why certainties and resulting trusts are really one continuous topic. The certainty fails; the resulting trust catches what falls.

Presumed resulting trusts

These arise from contributions. If A pays for property and it's put in B's name (or in joint names), equity presumes — absent evidence of a gift — that B holds A's share on resulting trust for A. The presumption reflects the old equitable maxim that equity assumes bargains, not gifts.

Two counter-presumptions to know:

• The presumption of advancement, which historically treated transfers from husband to wife, or parent to child, as intended gifts. It has been weakened by statute in principle, but for SQE1 you should recognise it where the older cases still bite.
• Plain evidence of intention rebuts the presumption either way. The presumption is only a starting point that fills an evidential vacuum.

A point candidates miss: the resulting trust quantifies the share by reference to contribution. Pay 30% of the purchase price, get a 30% beneficial interest. That arithmetic matters when the question hands you the numbers.

Constructive trusts: equity responding to conscience

If resulting trusts track contributions, constructive trusts track conscience. A constructive trust is imposed by the court, regardless of intention, where it would be unconscionable for the legal owner to deny the claimant a beneficial interest. The categories aren't a closed list, but a handful recur in the FLK2 question bank.

The common intention constructive trust (the family home)

This is the heavyweight. It usually surfaces where an unmarried couple buy or live in a home in one party's sole name and then separate. The non-owner claims a beneficial share. The court asks two questions in sequence:

1. Acquisition. Was there a common intention that the claimant should have a beneficial interest? That intention can be express (an actual agreement, however informal) or inferred from conduct — most reliably from direct financial contributions to the purchase.
2. Quantification. If yes, what share? Where there's no express agreement on size, the court determines a fair share having regard to the whole course of dealing between the parties.

The leading House of Lords and Supreme Court authorities on the family home are the ones to keep straight, because the SRA likes to test the distinction between a sole-name case and a joint-names case. In joint legal ownership, the starting presumption is that beneficial ownership matches legal ownership — equal shares — and the party arguing otherwise must displace it.

Other constructive trust triggers

• Profits made in breach of fiduciary duty. A fiduciary who secretly profits from their position holds that profit on constructive trust. The principle is strict — good faith is no defence.
• Secret and half-secret trusts. These straddle Wills and Trusts and are worth a separate revision pass.
• The vendor under a specifically enforceable contract for the sale of land holds the property on constructive trust for the buyer pending completion — a neat crossover with Property Practice and Land Law.

Worked example: resulting or constructive?

Maya and Tom buy a flat in Tom's sole name. Maya pays 25% of the purchase price from her savings. There's no written declaration. Over six years Maya pays for a new kitchen and contributes to the mortgage. They split up and Tom claims the flat is entirely his.

On a pure resulting trust analysis, Maya's direct purchase contribution gives her roughly a 25% beneficial share. But the modern approach to the family home prefers the common intention constructive trust, which lets the court look at the whole course of dealing — the mortgage payments, the kitchen, the shared life — and award what is fair, potentially more than 25%. The examinable point is recognising that for a family home, the constructive trust framework, not the bare resulting trust arithmetic, generally governs quantification. Pick the wrong vehicle and you'll pick the wrong percentage in the answer options.

How to revise Trusts so it actually sticks

Trusts rewards a particular revision style. Reading the textbook cover to cover gives you a comforting sense of coverage and almost no ability to answer questions under time pressure. What works is repeatedly running fact patterns through a fixed decision tree until the routing becomes automatic.

Here's the sequence I'd drill until it's reflex:

1. Is there an express trust? Run the three certainties. If any fails, ask what happens to the property — and that usually means an automatic resulting trust.
2. If no express trust, is there a contribution? Think presumed resulting trust, quantified by contribution, subject to advancement and evidence of intention.
3. Is conscience engaged — a home, a fiduciary, a secret trust? Think constructive trust, quantified differently depending on the category.

The biggest single efficiency gain is question volume. You need to see the same doctrine dressed in twenty different fact patterns before the camouflage stops working. This is where a large, well-tagged bank earns its keep — the Ant Law SQE Question Bank lets you filter to Trusts, then drill down to "three certainties" or "constructive trusts" specifically, so you're not wading through Land Law co-ownership questions when you wanted pure equity practice. When a question trips you up, the in-app AI tutor will walk you through why the better answer beats the plausible-but-wrong one, which is exactly the reasoning the real assessment is testing.

Common traps that cost marks

• Treating precatory words as creating a trust. They almost never do.
• Applying the complete list test to a discretionary trust. Wrong test, wrong answer.
• Forgetting the second limb of subject-matter certainty — the beneficial shares must be certain too.
• Defaulting to a resulting trust on a family home when the common intention constructive trust governs quantification.
• Assuming the presumption of advancement still applies with full force in every parent/spouse transfer — check whether evidence of intention rebuts it.

Where Trusts sits in the bigger qualification picture

Trusts is one of 13 functioning legal knowledge subjects across SQE1, and FLK2 alone won't make you a solicitor. The full route to solicitor qualification in England and Wales also needs a qualifying degree or equivalent, two years of Qualifying Work Experience (QWE), and a pass on the SRA's character and suitability assessment. Plenty of candidates revise the law diligently and leave their QWE recording until the last minute — don't be one of them; log it as you go.

On pass rates: SQE1 is genuinely demanding and the published figures move between sittings, so resist the urge to anchor on a number you half-remember. Check the latest SRA statistics, and the current fees and sitting dates, on sqe.sra.org.uk rather than trusting anything floating around online. The SRA is the only authoritative source for the current position.

For Trusts specifically, the candidates who do well aren't the ones who memorised the most cases. They're the ones who, shown a half-page of family drama, can calmly route it to the right doctrine and pick the share the law actually gives. That's a skill you build by doing, not reading.

So pick a doctrine you find shaky — common intention constructive trusts is the usual culprit — and work a focused set of questions on just that until the decision tree runs on autopilot. You can drill exactly those Trusts fact patterns, with full explanations, in the Ant Law SQE Question Bank at antlaw.ai, across iOS, Android and web. Twenty good questions on certainties tonight will do more for your FLK2 score than another re-read of the chapter.