Lecture 12 - Secret Trusts
Lecture 12 - Secret Trusts
Lecture 12 - Secret Trusts
SECRET TRUSTS
Tenants in common:
- Need to communicate before death (Fully secret)
- If only communicated with one then only they have to hold on trust
Joint tenants:
- Be careful (Fully Secret)
- Only communicate to one person before the will is signed – all are responsible
- Only communicate to one person after the will is signed – only one person
bound by the trust
- While secret trusts have been recognized in many common law jurisdictions for
centuries, there has been some debate and scrutiny surrounding their legitimacy
and practicality. Some argue that secret trusts may be susceptible to abuse or
LECTURE 12: SECRET TRUSTS
a. Critically discuss the “secret trust” and the disputed legal basis that underpins its
existence.
Legal basis
'dehors' & fraud – theories – what do you prefer
Fully secret
o No mention of trust in the will
"I'm giving you 10 million pounds"
o Requirements
Intention
To impose the trust on the secret trustee
To create the trust – 3 certainties
Communication
Communication to the trustee
Before the testator dies
LECTURE 12: SECRET TRUSTS
Half secret
o Says give money on trust but doesn’t say who it is going to or any terms
o Requirements
Intention
Must show intention to create a trust
Must meet requirements of 3 certainties but is easier to satisfy than
fully secret
Communication
Must take place on or before the will being signed
Acceptance
Can accept by silence, orally or written in equity