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WHY?
an arrangement between a testator and a trustee to benefit a person
without having to specify that person in a will
made to come into force after death as he will instruct the trustee to
distribute the trust after his death
that aims to benefit a person without having been written in a formal
will
the testator wish the identity of the beneficiary to remain secret
he may simply not have made up his mind at the time of making the
will relating details of all the dispositions
Requirements:
1. Intention
2. Communication
3. Acceptance
[villa]
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Blackwell v Blackwell
(1929) AC 318
Dicta of Viscount Sumner:
The necessary elements. . . are
intention,
communication
and
acquiscence. The testator intends his
absolute gift to be employed as he and
not as the donee desires; he tells the
proposed donee of his intention and ,
either by express promise or by tacit
promise,
which
is
signified
by
acquiscence,
the
proposed
donee
encourages him to bequeath the money
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Requirements:
1. Intention
2. Communication
3. Acceptance
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Intention
i)Need to illustrate sufficient certainty of intention.
ii)Need to show that the testator intended to subject the
secret trustee (primary donee) to a mandatory obligation
to hold property for the benefit of secret beneficiary
(secondary donee).
Case: Ottoway v Norman
Brightman J held on the facts of the case that a secret
trust devise applied to the testators bungalow, furniture,
fixtures and fittings but not to money devised to the
testators housekeeper since there was insufficient
evidence of the testators intention that she was not to
keep the money
16
Application:
Cheng invited James to dinner and delivered the portable
storage device to him. On top of that, Cheng effectuate his
intention by placing the code of the device to his lawyers and
inform James on this. Thus, there is a strong intention that can
be infer from Cheng to have the trust to be valid.
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Communication
Principle:
1. Communication can be effected at any time during the
life of the testator, either before or after the execution
of the will ( Moss v Cooper)
2. Equally effective if the testator were to hand to the
trustee a sealed envelope containing the term of the
trust, and instructed the trustee not to open the same
until after the death of the testator.(Re Keen)
3. The communication must identify the property to be
held on trust, and the identity of the secret beneficiary
or the means to discover the same( Re Boyes)
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Application:
There is a valid full secret trust because Cheng pass the
portable storage device to James before his death and in
fact the code was sealed in envelope and James can only
know about the code after Chengs death. Therefore, there
is effective communication between Cheng and James to
inform the trust made for the benefit of Ms Yen and her
daughter
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Acceptance
The secret trustee is only bound by the
trust if he has accepted to hold the same on
trust.
Intended trustee accepted that he would
hold it on trust.
Wallgrave v Tebbs, court held that a
claim founded on secret trust failed because
the devisees knew nothing of the testators
intention until after his death.
20
21
Application:
The fact that when Cheng invited
James to dinner, informed him the
legacy of RM 100,000 under the will
for someone special and received
the portable electronic storage
device from Cheng showed that the
he accepted to become the trustee.
This shows express acceptance on
part of James.
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CONCLUSION FOR
SECOND ISSUE
The 3 condition of a valid full secret trust are fulfilled:
a. Intention: Cheng invited James to dinner and
delivered the device to him,
b. Communication : must be made before the death
of testator, he handed the device to James,
c. Acceptance : express acceptance when James not
refuse when received the device and carried out the
trust after the death
Thus, the full secret trust given to James to hold RM
100,000 on behalf of Ms Yen and Chi Chi is valid.
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