Everything

Question 1

A trust created by a will (testamentary) must comply with the requirements of which Act?

Answer 1

The Wills Act 1837

Question 2

When do wills become public documents?

Answer 2

After the probate has been granted.

Question 3

What are the two requirements that s.9 of the Wills Act 1837 states?

Answer 3

The will must be signed by the testator.

The will must be signed by two people.

Question 4

When do secret trusts arise (two points)?

Answer 4

When the existence of a trust are not disclosed in the will.

When the terms of a trust are not disclosed in the will.

Question 5

How does intention (seperately) & communication (seperately) work in a fully secret trust?

Answer 5

Intention is outside the will & it must appear as a gift.

Communication must be made any time before the testator’s death.

Question 6

How does intention & communication work in a half secret trust?

Answer 6

Intention is inside the will & it must appear to be on trust.

Communication must be made on or after the testator’s death.

Question 7

Why are secret trusts upheld (with cases)?

Answer 7

To prevent fraud - McCormick v Grogan (1869) LR 4 HL 82.

Secret trusts operate outside (dehors) of the will - Blackwell v Blackwell [1929] AC 318/Re Young [1951] Ch. 344.

Question 8

What are the three requirements for a secret trust to be valid (one has a case)?

Answer 8

Intention, communication & acceptance (Moss v Cooper 1861 1 J&H 352).

Question 9

Which case is relevant for intention in a fully secret trust?

Answer 9

Re Snowden [1979] 2 All ER 172.

Question 10

What happens if there is no intention in a fully secret trust?

Answer 10

The would-be secret trustee takes the benefits for himself.

Question 11

What are the three possible outcomes in a fully attempted secret trust (with cases)?

Answer 11

A valid fully secret trust is created - Moss v Cooper (1861) 1 J&H 352.

The would-be trustee takes the benefits for himself - Wallgrave v Tebbs (1855) 2 K&J 313.

A resulting trust is created, and the property goes back into the testator’s estate - Re Boyes (1884) 26 Ch D 531 -

Question 12

What are the two rules regarding half secret trusts (with cases)?

Answer 12

Communication must be made on or before the testator’s death - Re Bateman [1970] 3 All ER 817.

There must be no contradictory evidence - Re Keen [1937] Ch 236.

Question 13

Which case highlighted that silence is acceptance?

Answer 13

Moss v Cooper (1861) 1 J&H 352.

Question 14

Which case highlighted that the testator’s legatee must be informed of any increases in the legacy?

What is the name of this concept?

Answer 14

Re Colin Cooper [1939] Ch 811 (CA).

Codicils.

Question 15

Can a secret beneficiary witness the will?

Answer 15

No.

Question 16

Gift (witness)

What does s.15 of the Wills Act 1837 state?

Answer 16

A gift to a witness does not affect the validity of the will, but that gift is void.

Question 17

Which case stated that secret trusts operate outside the will?

Answer 17

Blackwell v Blackwell [1929] AC 318/Re Young [1951] Ch. 344.

Question 18

Gift (lapses)

What does s.25 of the Wills Act 1837 state (with the case)?

Answer 18

A gift in a will fails (lapses) if a beneficiary dies before the testator.

Re Maddock [1902] 2 Ch 220.

Question 19

How do fully secret trusts & half secret trusts differ when the secret trustee predeceases the testator?

Answer 19

If a fully secret trustee dies before the testator, then the fully secret trust fails as they are the beneficiary therefore they have predeceased the testator.

If a half secret trustee dies before the testator, then the gift will not fail as it is only the trustee that has deceased and “ a trust will not fail for want of a trustee”.

Question 20

What happens if the secret beneficiary dies before the testator (with the case)?

What is the reasoning?

Answer 20

Re Gardner (No 2) [1923] 2 Ch 230

If the intended secret beneficiary dies before the testator, then the trust does not fail and the trustee holds the property for the deceased beneficiary’s estate.

This is because when the secret trustee accepts the trusteeship, the secret beneficiary acquires an interest in the property so if the beneficiary dies, the property just passes to his estate.

Question 21

How can a secret trustee take some benefit under a will (with the case)?

Answer 21

If the testator puts the intention in the will - Re Rees [1949] Ch 541.

Question 22

In which type of secret trust can you have two or more secret trustees (with the case)?

Answer 22

Fully secret trusts - Re Stead [1900] 1 Ch 213

Question 23

Gift & communication

What are the two conditions for having two or more secret trustees?

Answer 23

If a gift in a will is made to the secret trustees jointly and,

If communication is made to one of the secret trustees before or at the time the will is made, then both are bound.

Otherwise, only the knowing secret trustee is bound.

Question 24

Which piece of legislation does a fully secret trust of land need to comply with?

Answer 24

s.53(1)(b) of the Law of Property Act 1925.

Question 25

What did Brightman J uphold regarding fully secret trusts (with the case)?

Answer 25

A fully secret trust doesn’t need to be in writing if it is constructive - Ottoway v Norman Ch 698.

Question 26

Does a half secret trust need to be in writing (with the case)?

Answer 26

Yes - Re Baillie (1886) 2 TLR 660.