Secret Trust

Question 1

Secret Trust and the Wills Act…. and beneficiaries who witness the will…

Answer 1

Secret trusts operates outside the wills act.

If a beneficiary witnesses the will he will still take benefit under the secret trust.

Question 2

Re Young, as per Danckwerts J

Answer 2

Secret trust operates outside the wills act.

“ the whole theory of the formation of a secret trust is that the Will Act has nothing to do with the matter.”

Question 3

WHAT IS A FULLY SECRET TRUST?

Answer 3

on the face of the will the trustee will appear to be the absolute beneficial of the trust but a constructive trust is imposed upon him to prevent him from unconscionably denying the real beneficiary’s rights.

Question 4

what are the formalities of a secret trust?

Answer 4

.

Question 5

Communication in a full secret trust…

Answer 5

Must take place before the testator’s death…

Re Boyes: trust failed because of its objective uncertain.

Communication must be of a definite legal obligation and not a mere hope: Re Snowden

Question 6

What happens is a testator before he dies, places a sealed envelope containing the instructions in to the executor’s hand…will the trust be valid?
state case law to back up your answer.

Answer 6

The trust will be valid…as long as the trustee is aware of the envelope.

Question 7

what was said in Ottaway v Norman regarding communication….

Answer 7

if there are communication with regards the beneficiaries…. then there is no trust….. the trustee should be given the chance the refuse the offer of being a trustee..

Question 8

Acceptance

Answer 8

Can be expressed or even silence will indicate acceptance: Moss v Copper.

Moss v Cooper: also held that if the terms are communicated by an agent this was sufficient.

Question 9

Intention: the testator must have intended to create a trust.

Answer 9

Peter Gibson LJ, in Kasperbauer v Griffith clarified that a testator must have intended to create a trust, complying will all of the three certainties.

Question 10

In a full secret trust when must communication take place?

Answer 10

At any time before the death of the testator.

Question 11

Half secret trust….

when should communication take place?

Answer 11

before the testator’s will is executed or at the time that the will was executed …Blackwell v Blackwell