EXAM NOTES - Secret Trusts Flashcards
general issues
- what kind of secret trust is it?
- is the trust properly created?
- communication?
- acceptance?
- reliance?
6 Can the trust be carried out properly?
7 can a secret trust of land be valid?
how is a secret trust created?
Kasperbauer v Griffith
- normal trust requirements; three certainties
- plus
o Communication to secret trustee (ST)
o Acceptance of role by ST
o In reliance of that acceptance settlor (S) makes a will
how do the three certainties relate to STs?
- T must have the intention to create a legally binding obligation
- Kasperbauer v Griffith wife “knows what to do” too vague
- Margulies v Margulies brother “knowing his wishes” and “giving what’s appropriate” too vague
how do statutory formalities relate to STs?
- Creation of lifetime trusts - s53(1) LPA 1925
- Creation of trusts of land must comply with s53(1)(b)
- Testamentary trusts – s9 Wills Act 1837 – signed by S and witnessed by two people present at the same time
what is a fully secret trust (FST)
one where the existence of the trust is kept completely hiddden in the will?
what must be communicated for a FST
- The trust’s existence, terms and subject matter must be communicated to the ST before the S’s death
o Existence Wallgrave v Tebbs
o Terms/beneficiary Re Boyes
o Subject matter Re Colin Cooper
when must communication happen for a FST
- at any time before death
how can communication happen for a FST
- Orally or through sealed envelope (Re Keen)
o But ST must know the envelope contains the terms of the trust
o And ST must willingly accept the envelop on that basis
what is the general rule for communication to trustees in FSTs?
- communication must be to all trustees
- unless the trustees are joint in a FST (eg “to A and B”); communication to one trustee binds all joint trustees Re Stead
- Re Gardom: all half secret trustees are bound provided you tell at least one before the will is signed.
- but if communication made after execution, only those with actual communication are bound
how can acceptance be made for FST?
- expressly through clear communication
Implied – acceptance through conduct – happens unless ST actively refuses. Silence constitutes implied acceptance Moss v Cooper
what is the general rule about disclaiming for FST?
- General rule: cannot disclaim a legacy in a will
Explain the different opinions on disclaiming a FST
- Two authorities:
o Re Maddock – can disclaim
o Blackwell v Blackwell – cannot disclaim. Decided when STs were more widely used.
Blackwell decided in a higher court and more recently
o But if you have a strong objection on moral grounds and refuse to do it the court might allow you to disclaim and would find a replacement trustee; “equity will not allow a trust to fail for want of a trustee”
how is reliance found for FST?
T usually has made a will in reliance of the FST or has not revoked a gift in a will Hunter v Moss
- FST T can make a will and ask later – if they agree, no need to change the will
what is a half secret trust (HST)
Where the existence of the trust is in the will but the terms and beneficiaries are not
- E.g. “for purposes I have made known to them”
when must communication happen for HST?
before or at the time when your will is executed (i.e. signed and witnessed) Re Bateman’s Will Trust
o What you say in the separate instructions must be consistent with what is in the trust Re Keen