The birth of bitcoin in the Great Recession of 2008 appealed to cypherpunks and libertarians distrustful of government. Together with copycat altcoins, the volatility of cryptoassets has drawn interest from investors and speculators who did not share in these ideals, including trustees, raising four questions. First, can cryptoassets be the subject-matter of trusts? Second, if so, how may the rules relating to validity be applied to cryptoassets? Third, is such an investment permitted under the terms and/or governing law of a particular trust? Finally, what must trustees be aware of in deciding whether to invest in this new asset class?

The Court of Chancery required ‘three certainties’ in order to recognise a valid private express trust. These are: certainty of intention to create a trust, certainty of subject matter of a trust (trust property), and certainty of object (those who are or may be entitled to trust property). Each of the certainties is crucial, for varying reasons. Unless the certainty requirements can be satisfied, an enforceable trust will not have been created. Each of the three certainties will be considered separately.

All dispositions that are intended to transfer property, such as contracts, gifts, trusts and wills, must be clearly defined if they are to be legally effective. In the event of a dispute, a court may have to ascertain whether the property owner intended to dispose of her property and, if so, on what terms. In some cases, the court may have to determine the identity, or identities, of the recipients of the property, or the quantum of property transferred. A recipient of property will need to know if the transfer constitutes a gift, a loan or a trust. All trusts, whether or not they also have to satisfy writing requirements, must be sufficiently certain in order to be enforceable. The certainty requirements for trusts are more demanding than for contracts because trusts can affect the rights of parties who did not agree to, or participate in, its creation. These parties may include the beneficiaries and third parties who do business with the trustee.