a testator cannot reserve to himself a power of making future unwitnessed dispositions by merely naming trustee and leaving the

purposes of the trust to be supplied afterwards Sumner

cf. FST, can delay decision until any time up until death Blackwell v
same by name, intention, communication and acceptance but the rules of communication are different Blackwell 29
HL exact nature is unclear valid despite contravention of s.9 Wills Act 1837
must take place before or at the time the will was signed operate outside a will difficult to categorise
communication and acceptance
NSW and parts of US allow communication to be made in HST after the execution of the will HST Intro Fully Secret Trust FST gift made absolutely on the face of the will but the testator tells the legatee that they aren't to keep the gift for themselves but they must hand it over to a third party
secret trust is justified because operate outside wills it is law of trusts not succession
if the terms of the will suggest that the terms of the gift are to be communicated at some future date then the gift will fail as the trustee conflict between the terms of the will Half Secret Trust HST sometimes the fact that the gift has been made is disclosed on the face of the will
has suggested that the terms are to be given at a future date and even where they are given at an earlier date this will not save the gift and the communication of the trust

concealing identity of beneficiary from publicity probate can attract

if the secret trust fails then there is nothing to stop the trustee of a fully secret trust from claiming the gift beneficially secret trusts conceal nature and extent of power vested in trustees
benefit illegitimate child, mistress
the will discloses that the property is to be held on trust so the trustee cannot claim the property beneficially
harder for legatee to disown - social pressure and in the event of failure of the trust property will result back to the estate and pass into the residue Why increases of family conflict - making gifts to people other members of the family don't approve of
use
STs? avoid making a long list of specific gifts but will let a residuary beneficiary or beneficiary under his will know to whom gifts should be given
CA held, the trustee of HST wasn't entitled to assert any entitlement to such a surplus because this would be Is the trustee entitled
inconsistent with the terms of the will, which suggested all property bequeathed to him was subject to the trust avoid loss of state benefits to avoid going over the asset threshold
Re Rees 50 to the gift absolutely
to avoid embarrassment
subsequently added codicil to his will, doubling gift without communicating alteration to the trustees HST
T'or left money in will to 2 trustees, previously communicated terms to both avoid the gift to be challenged/set aside
Re Colin Cooper 39 codicil requires the same formalities as the main will
CA held, only original amount was subject to the secret trust can't decide who to give money to so retain control without having to include a codicil in their will
trustee entitled to keep the surplus of the trust property remaining after the trusts had been carried out Irvine v Sullivan 1869
doctrine allows documents which were in existence at the time the will was made to be incorporated with the will and to be applied in the same way as the will itself documents will be public as is the will

FST will fail if the trustee dies during the lifetime of the testator Incorporation would not assist a testator that wanted to keep bequest secret
Cozens Hardy by
if the legatee renounces and disclaims or dies in the lifetime of the testator the persons claiming under the memorandum (the secret trust) can take nothing Maddock attempt to incorporate failed T'rix left instructions in a book, book didn't exist at the time of signing, although a codicil was added it didn't mention the book
1902 secret trustee reference
in the case of HST equity will not allow a trust to fail for the want of a trustee and an alternative trustee will be found. the property will vest in the trustee's personal representative pre-deceasing the testator
Re Smarts 1902 the document must be in existence at the date of the will a later document can only be incorporated if a codicil is added to the will mentioning the incorporated document
a gift by way of a secret trust was treated as if it had been made by will in a case where the estate was insufficient to meet all the specific gifts made by the testator
Gorrell Barnes conditions
the document must be referred to in the will as an existing document
once the testator died then the trust is constituted and the trust will not fail even if the trustee disclaims the trusteeship
no trust would arise in such a case Re Maddock secret trustee
disclaiming the O cohabited with Miss Hodges in his house, on death O left to H in his will, H left house in her will to another couple son claimed house had been left to H on the understanding she would transfer it to him
in the case where no trusts are mentioned the legatee might defeat the whole purpose by renouncing the legacy and the breach of trust would not in that Buckmaster and trusteeship after Problems
case inure to his own benefit, but i entertain no doubt that the court having once admitted the evidence of the trust, would interfere to prevent its defeat the testator's death claimed FST, Brightman concluded there was upheld orally declared secret trust of land
Warrington dicta
Blackwell v Blackwell
secret trustee aka primary donee
a beneficiary under a will after the testator's death can always disclaim a legacy or devise
before acceptance and a person can always disclaim the office of trustee before acceptance Ottaway v secret beneficiary aka secondary donee
Smith v Smith 2001 Norman 72 1, intention of the testator to subject the primary donee to an obligation in favour of the secondary donee
secret trustee revokes acceptance Brightman 2, communication of that intention to the primary donee
even where acceptance has been communicated to the testator the trustee can revoke acceptance at any time up until his death before death of testator
3, the acceptance of that obligation by the primary donee either expressly or by acquiescence
consider 4, standard of proof - analogous to that required before the court would rectify a written instrument
equity will not allow a statute to be used as an instrument of fraud
criticised as didn't really involve a secret trust, no immediate obligation to hold the house on trust for son
would be fraudulent the legatee would be using the failure to comply with the Wills Act as a reason for taking the gift absolutely
prevention of must be evidence that the T'or intended to subject the secret T'ee to a trust in favour of the secret beneficiary
if the purpose of upholding the gift is to prevent fraud then why should the secret beneficiary take the gift? fraud theory merely to impose a family or moral obligation will not be enough to impose a trust
arguable either way clearly the secret trustee should not take the gift but it could equally be taken by the residuary beneficiary criticism now being a jurisdiction founded on personal fraud, it is incumbent on the curt to see that a fraud, a malus animus, is proved by the clearest and most indisputable evidence...you are obliged, therefore to
Westbury show most clearly and distinctly that the person you wish to convert into a trustee acted malo animo. you must show distinctly that the testator or the intestate was beguiled and deceived by his conduct
it doesn't explain why HST can be upheld. in these cases as the trust is evident on the face of the will then there is no possibility of fraud McCormick v
Grogan 1876 HL
the modern explanation of the basis of secret trusts is that they do not arise in will at all but they arise outside the will a doctrine which involves a wide departure from the policy of...the Wills Act and it is only in clear cases of fraud that this doctrine has been applied - cases in which the court has been
Blackwell v persuaded that there has been a fraudulent inducement held out on the part of the apparent beneficiary in order to lead the testator to confide to him the duty which he so understood to perform
Theoretical Secret Trusts 1, intention of the testator to subject Hatherley
it is therefore an inter vivos declaration of trust by the testator. it is not a testamentary disposition and so there is no conflict with the Wills Act 1837. Blackwell
basis the primary donee to an obligation
the trust is fully constituted when the legal title becomes vested in the trustees. this will occur when the trustee receives his legacy under the will in favour of the secondary donee elderly T'rix left entire residuary estate to her older brother because she said her brother would know what to do
should the entitlement be characterised as a legacy under the will? was uncertain as to how she should leave her property amongst relatives
Mr Y left his entire estate to his wife Eveleen, prior to his death informed E that his chauffeur should receive 2000 died without changing her will, six days later her brother died leaving his property to his only son
dehors the
held, the chauffeur was entitled to receive the money because his entitlement was by way of a secret trust which had arisen wholly outside the will will theory to impose a trust on her brother in favour of the nephews and nieces? she had merely intended to impose a moral obligation on him.
Re Young 1951 Snowden
the forms required by the Wills Act are entirely disregarded, since the persons do not take by virtue of the gift Danckwerts 79 held, no secret trust and the brother's son was entitled to the entire residue absolutely
in the will, but by virtue of the secret trusts imposed upon the beneficiary, who does in fact take under the will Megarry the whole basis of secret trusts, as I understand it, is that they operate outside the will, changing nothing that is written in it
decision conflicts with the view that the trust is only constituted when the property is vested in the secret trustee through the will after the testator's death Re Gardner No 2 23 and allowing it to operate according to its tenor, but then fastening a trust on to the property in the hands of the recipient
the more uncertain the terms of the obligation, the more likely it is to be a moral obligation rather than a trust, many a moral obligation is far too indefinite to be enforceable as a trust
there must be both communication of the existence of the trust as well as the terms of the trust. this must be communicated to the secret trustee either personally or through an agent.
if express, lack of writing may render unenforceable s.53(1)(b)
LPA 25 communication must be during the testator's lifetime and it does not matter whether it takes place before or after the date of the will
if there is communication but the terms are left uncear the property will be held on trust for the residuary legatee or the persons entitled on intestacy
held, a secret trust of land unenforceable because the Statute of Frauds applied and the trust had not been indicated in writing North
Re Baillie 1886 if the secret trustee only hears of the trust after the death of the testator then it will be ineffective
FST communication by letter after the death of the T'or will not be enough because the secret trustee will not have an opportunity to refuse to act a sealed envelope may be enough
oral declaration of a secret trust of land was upheld Ottoway v Norman 72
Page Wood held no trust had been created, d was entitled to take the property bequeathed to them absolutely
equity will not allow the statute requiring trusts of land to be evidenced in writing to be used as an instrument of fraud
Rochefoucald v Boustead 1897 Wallgrave v Tebbs 1855
to prevent the secret trustee denying the trust because of the absence of writing T'or left property to defendants, a letter he wrote appeared to suggest intended a charitable purpose, didn't communicate to d during lifetime
arguments in favour of secret trusts taking effect as constructive trusts are much weaker and are largely based on obiter no communication in lifetime made
B left his entire estate in his will to his solicitor, before he died, told solicitor he was to hold on trust, the terms of which he would communicate by letter
can't stop her revoking her will and executing a new one
AC clearly intended property to be bequeathed to his wife should go to the children equally express Re Boyes 1884
if FC's new will was allowed it would defeat AC Arthur C and Flora C made mutual wills in these circumstances a secret trust had not been established in favour of the mistress and child. however as the solicitor had admitted he
or 2, communication before had agreed to receive the property left to him as a trustee, he couldn't retain it absolutely for himself and it was held on trust for B's next of kin
implied? Kay
extrinsic evidence, evidence of family conversations entitled him to conclude that there was clear and satisfactory evidence that the testator of that intention to the
and testatrix did make an agreement which they intended should impose mutual legal obligations as to the disposal of their property the primary donee death communication of both the fact f the trust and the terms
evidence suggested it was clear C knew she was under an obligation to dispose of her estate in accordance with the of the
testator such communication of both the fact of the trust and the terms of the trust sailing under orders though the exact terms are not ascertained by the captain till later
terms of their mutual wills - only later she adopted the attitude her husband was dead and wouldn't worry about it Wright
Re Keen 37
principle of all these cases is that a court will not permit a person to whom property is transferred by way of Cleaver
if he attempts to do so after having received the benefit of the gift, equity will intervene by imposing 1981 a sealed envelope containing the terms of the trust which had been given to the trustee could constitute sufficient communication to create a secret trust
gift, but on the faith of an agreement or clear understanding that it is to be dealt with in a particular way for the
a constructive trust on the property which is the subject matter of the agreement or understanding benefit of a third person to deal with the that property inconsistently with that agreement or understanding. although bear in mind, evidence will not be admissible of communication inconsistent with the face of the will
rules apply equally to a trust arising under an intestacy or where there is a valid will so long as there has been communication to the trustee entitled to benefit under the intestacy
more than mere honourable engagement i would emphasise that the agreement or understanding must be such as to impose on
Nourse tenants in common communication to one tenant in common will not be binding on the share of the other tenant in common
the donee a legally binding obligation, to deal with the property in the particular way
a contract is required
require clear and satisfactory evidence on the balance of probabilities two or more joint tenancy communication to one of two joint tenants will be sufficient to bind both shares
persons
difference is solicitors evidence cf. Goodchild v Goodchild owning land informed one but not the other
S left property to 2 as tenants in common

Re Stead 1900 if a testator made effective communication to any one of the joint tenants before executing the will, they would all be bound by the secret trust
Farwell
where communication occurred after the will had been executed, only those to whom communication had been made would be bound by the trust

3, the acceptance of that obligation property can only be held on secret trust if the intended trustee accepts that he must hold it on trust acceptance unless the trustee positively refuses
by the primary donee either
expressly or by acquiescence property left to three trustees told to apply fund to certain charities, two accepted, one remained silent
Moss v Cooper 1861
held bound all three
solicitors should preserve the instructions from which the will was drawn and should also see that
4, standard of proof - analogous to that required guide to professional conduct of solicitors the terms of the secret trust are embodied in a written document signed or initialed by the testator
before the court would rectify a written instrument
Re Snowden in the event of a dispute then the standard of proof for those claiming that a secret trust has been created will be the balance of probabilities

Paul Hogarth-Blood