Secret Trusts

Question 1

Ottoway v Norman

Answer 1

Fully-secret trusts = constructive trusts

Question 2

Re Baillie

Answer 2

Half-secret trusts = express trusts

Question 3

McCormick v Grogan

Answer 3

Intention

Testator gave the legatee a letter with instructions about their trust, never mentioned to follow the instructions - lack of clear intention

Question 4

Wallgrave v Tebbs

Answer 4

Communication

Letter was written but never sent - onvalid communication

Question 5

Re Keen

Answer 5

Communication

sealed envelope was delivered to the trustee - never opened until after death - valid communication

Question 6

Re Boyes

Answer 6

Communication

Testator communicated his intention to the secret trustee, who agreed in principle to carry out the terms. Terms were found amongst T albelongings and didn’t come to light until after the death. Held that the ST held the property on a resulting trust for the testator’s estate.

Question 7

Ottoway v Norman

Answer 7

Acceptance

Establishes that acceptance of the trust obligation may be inferred from the secret trustees silence.

Question 8

Jones v Bradley

Answer 8

Onus of proof

lies on those who claim a secret trust existed

Question 9

Re Snowden

Answer 9

Civil standard of proof applies

Question 10

Banco Ambrosiano SPA

Answer 10

no higher standard of proof exists for cases of fraud

Question 11

Re Stead

Answer 11

Where there are two or more Secret Trustee - Must the testator communicate with all of them?
Depends on the capacity in which the secret trustees hold the trust property
Tenants in Common- testator communicated with one of them only, only secret trustee is bound by the trust
Joint Tenants
Only one of them before executing his will- all of the secret trustees are bound
Only one of them after executing his will- only the secret trustee is bound by the trust

Question 12

Re Cooper

Answer 12

Changing terms – must be communicated to legatee

Question 13

Riordan v Banon

Answer 13

In Ireland, the communication of the objects of the trust to the trustee after the will is created is deemed enforceable

affirmed in prenderville v prenderville and re kings estate

Question 14

Scott v Bowring

Answer 14

a half-secret trust must be communicated to and accepted by the legatee prior to the testators death to be valid

Question 15

Re Young

Answer 15

secret trusts operate outside of the will

Question 16

Blackwell v Blackwell

Answer 16

although the trust is independent of the will – initial testamentary disposition must be valid

Question 17

O’Brien v Condon

Answer 17

a witness can be a beneficiary to a secret trust (diff to Succession Act)

Question 18

Re Armstrong

Answer 18

if the legatee is witness to the will – it is not a valid trust

Question 19

Re Maddock

Answer 19

if the legatee dies before the testator – the trust will fails

Question 20

Re Gardner

Answer 20

if the beneficiary dies before the testator, their heirs will take the interest