Mind Map Gallery Secret Trusts
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Secret Trusts
This is a mind map talking about secret trusts. You can create a mind map like this effortlessly.
Edited at 2020-09-27 13:09:17
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- Outline
Secret Trusts
Fully Secret Trusts
No evidence of Trust in the will
Will appears to give property absolutely
For Example:
appears in will as:A---->B in reality isA---->B- - - ->C
Can be created where there is no willunder rules on intestacy
Common Characteristics
Take effect on death
Exceptions to S9 Wills Act [1837]
Are dehors of the will
Half Secret Trusts
Evidence of Trust in the willbut not beneficiary
For Example:
Appears in will as:A---->B- - - ->? In reality isA---->B - - ->C
Basic Requirments
(a) A's intention that B holds the property on trust for C
Normal test is balance of probabilities
Re Snowden [1979]Megarry held that the exception iswhere the trust can only be shown by fraudulent actionthis is unnecessary
(b) A's communication to B of trusteeship
Fully Secret Trusts
Terms of the trust must be communicated and acceptedprior to Testator's death.
Half-Secret Trusts
Terms of the trust must becommunicated and acceptedprior to or at the same time asthe execution of the will
Terms must be consistent with earlier instructions
Re Keen [1937]
Testator left £10,000 to his executors:'to be held upon trust and disposed of by them among such person, persons or charities as may be notified by me to them or either of them during my lifetime' The CA held that this had been communicated to one of the trustees prior to the execution of the will but still failed. Lord Wright MR heldthe will must state that there has been prior communicationthere must have in fact been prior or contemporaneous communication
Rules endorsed in Re Bateman's Will Trusts [1970]
Normally no requirement of communicationIntended Trustee can declineresults in appointment of new trustee
Sealed envelope containing details is sufficientRe Boyes (1884) Re Keen [1937]
knowledge of an envelope which is not givenbut later discovered after death is insufficientRe Boyes (1884)
Communication to multiple Trustees
Re Stead [1900]acceptance by B1 as joint tenantis sufficient regardless of B2's ignorance
Re Stead [1900]If communication is after deathor B1 and B2 take as tenants in commononly binds B who accepts
Re Colin Cooper [1939]Only extends to property that B has agreed to hold on trust
Extra property must be communicated and acceptedOtherwise the trust fails.
Failure of Secret Trusts
Half Secret: Resulting Trust to A's estateRe Boyes (1884)
Fully Secret: B keeps property
(c) B's acceptance
tacit acquiescence is sufficient
Revocation of acceptance
Re Maddock [1902]Secret trust fails if B dies or disclaims trusteeshipprior to A's death.
Blackwell -v- Blackwell [1929]Court would not let this defeat the trust
Particularly where there is insufficient time to make other arrangements
Secret Trust must fulfill certainty requirements
Normally trust fails when Beneficiary is deadThis may be different in Secret Trusts
Re Gardner [1923](was probably wrongly decided)
Testatrix sought to create half-secret trust for 3 beneficiaries.Communicated to trustee.Prior to Testarix' death one beneficiary dies. Romer J held this did not cause the trust to fail and the 1/3 share could be claimed by the deceased beneficiary's personal representative.
Wills
S 9 Wills Act 1837Will is invalid unless:
(a) It is in writing and signed
(b) Testator intended to give it effect
(c) signature has witnesses
(d) Each witness either:
Attests and signs
Acknowledges his signature to the testator
All are required
Applies not only to the declaration of trustsbut also to the transfer of title to the intended trustee.A dead person cannot be a trustee.Trust must state:
Who the trustee is
The Terms of the trust
The exception isSecret Trusts
For Example
A makes a behest in his will for property to pass to B A----->B A tells B that the property is to be held on trust for C A----->B - - - ->C A's will does not contain the details of the trust and does not satisfy S 9 Wills Act [1837]Rather than impose a resulting trust the courts have given effect to the unwritten intention in a similar fashion to Rouchefoucauld -v- Boustead
Similar toRouchefoucauld -v- Boustead
May reference other documents(incorporation by reference)
Why are they exceptions?
Prevent Fraud on the part of the trustee
Equity will not permit a Statute to be used as an instrument of fraud(McCormick -v- Grogan (1869)
Problems
Only works where trustee is seeking to deny the trust
Giving effect to the trustis not the only way to prevent fraud.Why not resulting trust?
Defeats intentions
Testator is deadCan't try again
Fraud argument is reallyunjust argument
Explains the decision but not the form
They arise and operate 'dehors' of the will and do not invoke the formality rules
The trust has nothing to do with the formality requirementsIt was created during the Testators lifetime
Follow the normal requirements for trustsDo not require writing or attestation
All that prevents the trust taking effectis the transfer of property
Fails to interpret the true intentionTestator only intends the trusteeship to take effect on death
Do Secret Trusts of Land need to satisfyS 53 (1) (b) LPA [1925]?
Re Baillie (1886)Half-Secret Trusts do.
However, could apply the principle in:Rouchfoucauld -v- Boustead [1897]
Ottoway -v- Norman [1972]Half-Secret Trust upheld(with no discussion on the point)
Has support in cases:Blackwell -v- Blackwell [1929]Re Young [1951]
Re Young [1951]Held that a witness to a will was able to be the beneficiary of a half-secret trust.Half-Secret trust is dehors the will.
Problem Cases
For Example:Precatory words
Will states:A---->Bin full confidence that he will deal with them in the manner I shall communicate to him in a letter. Letter might not make intention to create a trust clear
Intention clear
Half Secret Fails (Re Keen [1937])Uncertainty
Intention unclear
Fully Secret may succeedIntention is not derived from the willtherefore not uncertain