Secret Trusts Flashcards
Full Secret Trust
- testator must intend to create the trust
- communicate the terms of the trust to the trustee
- Terms are accepted by the trustee during his lifetime
Intention must be to subject somebody to a secret trust
Ottaway v Norman 1972
Communication must take place prior to the testator’s death
Re Bayes 1884
Testator increased ST amount by codicil
Re Colin Cooper 1939
Onus lies on person seeking to show the existence of the ST to establish this on the balance of probabilities
Re Snowden 1979
Only those to whom the ST is communicated to are bound as secret trustees
Re Stead 1900
‘no man may profit from the fraud of another’
Hungeuien v Basely 1807
In appropriate case acceptance can be inferred from the silence of the legatee (once communication is established)
Browne v Pourau 1995 NZ
Acceptance can occur by acquiescence
French v French 1902
Half Secret Trust
Divulges the existence of a trust on the face of the will, but does not disclose the identity of the intended beneficiary
Intention to impose a moral obligation does NOT constitute a trust, ‘he will know what to do with it’
Re Snowden 1979
UK: a valid HST must be communicated to and accepted by the legatee prior to the testators death
Scott v Brownrigg 1881
Memo specifying purpose after death
Re Waters WT 1929 insufficient communication
Orally communicated and accepted trust inter vivos- memo specifying instructions after death
Riordan v Banon 1876 - sufficient communication
Re Kings Estate 1888 judge
Monroe J
Re Kings Estate 1888 requirements
- Testator cannot declare a trust informally after will is executed
- Execution of trust must be before execution of will
- Communication must happen inter vivos & legatee must not object
- Before or at the time of execution of the will, communication can be made to any of the legatees. After the execution, communication must be made to all
- Terms of the trust mustn’t be uncertain
Communication & acceptance can occur after the execution of the will, but must be to all legatees
Re Browne 1944
Re Browne 1944 judge
Overend J
UK: Trustee must be informed and accept prior to execution
Blackwell v Blackwell 1929
Courts want to avoid ‘power of appointment’
Re Keen 1937
Re Bateman’s WT 1970
Irish Position:
Communication can take place any time before death of testator
Irish Position case
Prendiville v Prendiville 1990
Irish Position judge
Barron J
Barron J held ____ could not be relied upon
Re Keen
