Secret Trusts Flashcards
Re Snowden
Person claiming the trust exists must prove its existence on the balance of probabilities
McCormick v Grogan
Equity will not allow a secret trust to induce an individual to defraud the settlor by not carrying out the trust’s terms
Re Gardner (no 2)
Secret beneficiary predeceased the settlor - since trust arose upon declaration (not death), the beneficial interest did not lapse
Re Young
Secret trust benefitted a witness to the settlor’s will - held to be entitled under the declaration of trust, not the will
Kasperbauer v Griffith
‘Knows what to do’ is too vague to create enforceable legal obligation upon trustee
Constructive trusts are imposed to prevent fraud, so secret trusts of land are immune from s53(1)(b) formalities
Margulies v Margulies
‘Knowing his wishes’ and ‘giving what’s appropriate’ were not held to create a binding trust obligation
Wallgrave v Tebbs
Must communicate the existence of the secret trust
Re Boyes
Must communicate the terms of the trust - if not held on resulting trust for deceased’s estate
Re Colin Cooper
Subject-matter must be communicated - any variation that is not communicated prior to the death will be held on resulting trust
Re Keen
Cannot be any reference to future communication
Can be communicated via sealed envelope (or analogy) as long as the trustee knows it contains the terms of a trust and accepts it on that basis
Re Stead
General rule - must communicate to all trustees otherwise can take the gift outright
Exception in case of joint tenants (spouses/civil partners) - presumed if you tell one they’ll tell the other
Re Gordom
In half-secret trusts, if the will permits communication to be made to only one of the intended trustees, such communication is only effective if made before or at the time of executing the will
Moss v Cooper
Acquiescence by words or consent by silence count as acceptance of secret trust obligation
Not changing a will is evidence of reliance upon acceptance of fully secret trust
Re Maddock
If the trustee of a fully secret trust disclaims or predeceases the settlor, the trust will fail
Blackwell v Blackwell
If you can prove the trust exists, the trust will not fail for want of a trustee
