Secret Trusts Flashcards
Challinor, Smyth
covert device in which T can bypass statutory formalities which allows him to keep his personal affairs somewhat private
fully secret trust
arises where T makes a gift of property without expressly stating it is to be held on trust (Biehler), looks like an outright gift
half secret trust
clear from the will the legatee is holding it for another unnamed person - terms or identity of B are disclosed
fraud theory
equity will not allow a statute be used for fraud, rely on strict legal rights and retain benefit
dehors the will theory
statutory formalities of wills are irrelevant as STs operate outside of the will, B of an ST who witnesses the will, will not lose his interest
O’Brien v Condon
what she takes under the trust is something not under the will - dependent on validity of will
Ottoman v Norman; Birghtman J
intention, communication and acceptance
Smyth
communication must be sufficiently clear
Moss v Cooper
irrelevant whether communication is made before or after the creation of the will provided it is prior to T’s death
Re Watter’s Will Trusts
directions regarding the trust were found after death of testator therefore the half ST failed, as communication cannot occur after death of testator
Biehler (sealed envelopes)
sufficient provided T agrees in principle to carry out the terms during testators lifetime
Re Keen (facts)
prior to execution, testator gave sealed envelope to T directing him not to open it until after testator died, envelope contained name of intended B, held to be sufficient communication
Re Keen
instructions must be clear and not inconsistent with the will
Moss v Cooper
acquiescence either by words of consent or by silence
Re Colin Cooper
5k on ST for 2 JT, testator sought to add 5k, held not to be part of ST as the 3 criteria were not satisfied
1 JT accept before execution
all bound by terms of trust
1 JT accept after execution
only accepting T bound, others take beneficially
TIC
ST will only bond those who received communication of and accepted the trust obligation, others will take beneficially if they do not have notice of the trust
Biehler
the courts in Eng have taken a much more ‘stringent’ view
Blackwell v Blackwell; Viscount Sumner
for HST the requirements of communication and acceptance are stricter than for full ST, there must be communication and acceptance prior to execution
Mee
B v B gave birth to the prior acceptance rule that governs HST in Eng & Wales
Riordan v Bannon; Chatterton VC
half STs are valid provided communication and acceptance occur prior to testator’s death
Prendiville v Prendiville
Riordan line of authority was reasserted, unclear whether the wife had accepted the ST prior or after execution of the will. If it had occurred after, this would have been inconsistent with the will as the will stated, ‘as she had been advised.’ Barron J incorrectly based his decision to uphold the ST on Re Keen stating there was nothing in that case to state communication subsequent to the will was unacceptable, which was the opposite of the truth
