Half Secret Trusts Flashcards
What is a half secret trust?
The trust is recognised by the will but the beneficiaries are not mentioned. The trust is floating in existence waiting to be used and the will triggers it. Secret trusts operate outside the will changing nothing written inside it.
What does s.15 of the Wills Act 1837 state?
A person that witnesses a will as one of the two necessary witnesses cannot benefit under the will.
What happened in Re Young?
A chauffeur witnessed a will and he was also a beneficiary under a half secret trust. He could take beneficial interest because he took his property under the trust rather than under the will itself.
What happens to the will if a witness takes a gift under s.15 of the Wills Act 1837?
The gift to the witness is void, but the will is still valid.
What happened in Re Gardener (No 2)? about gifts.
If you create a will and leave money to F and F dies before you, then nothing happens to the money it forms part of your residue estate. If the property has been left as a gift in the will, it would have failed.
Does the dehors will theory apply to half secret trusts?
Yes.
Are the requirements the same as fully secret trusts?
Yes, intention, communication and acceptance.
What differs in the requirements between half secret and full secret trusts?
Communication must take place before or at the same as the will is executed.
What happened in Blackwell v Blackwell?
The testator wished to provide for a lady and her illegitimate son. The testator left £12k to 5 people in the trust for purposes indicated by them.
HELD: valid half secret trust, because there had been communication in a codicil before the codicil was executed which created the half-secret trust.
What did Viscount Sumner say about changing your mind in Blackwell v Blackwell?
You can’t keep changing your mind without making a new will.
What happened in Re Keen?
A testator left £10k to two people, indicated the need for future communication with the testator.
HELD: the requirement of future communication made it void.
What 3 ways can communication occur for half secret trusts?
- Orally or in writing
- By sealed letter as long as the recipient knows that the letter contains the terms of a trust (Re Keen)
- The intended trustee must know what property is impressed with a trust, if the testator makes any additions the the testator must inform the trustees.
What happened in Re Colin Cooper?
Original trust of £5k valid for proper communication, further £10k failed because he did not tell the trustees about it which was in a codicil
Do half secret trusts of land need to be evidenced in writing to comply with the s.53(1)(b) LPA 1925?
If expressed, yes.
Constructive no, which is a half secret trust
If there us a conflict between the express declaration and the will what happens? Re Keen
sealed letter handed to the trustees before the will was executed but the court would not accept it as evidence, because it conflicted with the will which pointed to future communication
Can you introduce new communication after the will is made with half secret trusts?
No.
What happened in Re Rees W.T.?
The trustees argued that the testator intended them to have the surplus after certain purposes were carried out.
HELD: evidence would not be accepted because it conflicted with the will.
If a solicitor wishes to claim he is a beneficiary this should be clear spelled out.
What happened in Re Tyler?
Note written by the trustee himself of a conversation he had with the testatrix.
HELD: evidence was not clear enough to show that the trustee was intended to be a beneficiary
Since half secret trusts are recognised by the will, what form will they always take?
Joint tenants, a half secret trust won’t be valid unless there is communication before or at the time of the will meaning they are all bound.
Can the testator change their mind?
Yes they can do this at any time.
What happens when a trustee dies? state
Right of survivorship s.18(1) Trustees Act 1925, where ther sole trustee dies, you can choose a new one s.18(2) Trustees Act 1925. Equitable maxim, the court will not allow a trust to fail for want of a trustee.
Who says half secret trusts aren’t difficult and why?
Wilde (1995)- half secret trusts normally created by solicititors, there isn’t difficulty as a solicitor is involved to provide all the advice to their client to make sure communication occurs before or at the time the will is executed.
How secret is a half secret trust? Larke v Nugus and what academic that taught you?
Steve Evans (2014), Larke v Nugus, for litigants to obtain information from the solicitor about the circumstances surrounding the creation of a half secret trust, they can ask for the solicitors attendance notes which will identify the beneficiaries.
What happened in Rees W.T.?Trust or Gift
It was construed as a trust, ‘unto my trustees absolutely they well knowing my wishes concerning the same’. The court rejected this as a half-secret trust.
