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Exam (elaborations)

Exam (elaborations) trust law

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This essay will discuss why the secret trusts doctrine should be abolished. Precisely because the theories which justify the enforcement fail to do this. A secret trust arises when a testator makes a gift of assets in his will. strength of an undertaking by the recipient to hold it on trust for a t...

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  • February 27, 2023
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  • 2022/2023
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Secret can be conidered as an equtable obligation , which is communicated to an intended trustee ,
during the time span of the testator , secret trust is useful way for leaving a gift in a will , if a person
don’t want the deatil of the gift to be in public knowledge , its often used to pass assent to the
illegitimate children without revealing the reationship to the immediate family .
The trustee in the secret trsut is under same legal obligfation as any other trustee , but if we access
from a practical prespective then its far more in S T to deny the existenceof the trust and it will be
also difficult for the benficiary to assert his/her rights due to absense of proper docmentation
There are two type of secret trust ,
Fully secret trust
Half secret trust
As the rule of establishing them depends on the fact that whther they are fully , or half ST that is the
reson specific rules are set out from both my essay shall touch upon the the origin of theses trusets
and the difference between them. And it the end il, also discuss the criticism which were put forward
agaist this concept of secret trust

For F ST the very first case was upheld in the 17 th centurey , as they havea long histroy in english and
welsh trust law , moreover aftyer the 18 centurey the cases of F ST were upheld on regular basis

On the other hand the casesof H S T the validity of the half secret trust was cnfrimed in the case of
blackwell v blackwell ,

In the case of full secret trust is obligation under the trust are completely concealed on face of willas
the oblitions under the trust are told to the legetee during the life of the testator , and when t come
to the H S T the terms of the trust will indicate towards the existence of the trustbut as name
demonstarte that will be not fully conceled and trystree will take the property ,underthe terms which
were communicated by thetestator in his life .
The case of ottaway and others v norman has given the requiremts for the secret trust I -e
The testaor of the trust must have the intention to make trsut , means theremust beobligation in the
truest that will give in favour of beneficiary
And the intention can be communicated in testor life time verbally or in written form and
Lastly that must be accepted by the legatee also

The point of communication carry immense imporatnce in differenciating the F S T from H S T
As is F S T the communation take placein any time during the life of ltestaor butin the half secret trust
the cummuniavtion must be BEFOREEE the will’s execution

And it may take place directly which can be orally or in written (outside of will ) but at the end it must
be communivcated constructively , by deliving a sealed envelop, won which it must bewriiten that not
open it before my death , the communation will be effwctive Ifthe legetee is aware about the letters
content as it has been stated in RE KEEN case
And regarding the acceptance of the from the legatee it can be in form of a slinece or acquiescence on
their part , and the time the testator intention are fully communicated to him he will be bound to
hold the trust ,, if he did nothing to reject the imposed obligation
And if he is rejecting then his refulsal must also be communicated to the testator , in ghis life time ,
he he failed then lege tee is bound and this wont absolve him from the laibility (moss v copper)

However the principle of re boyes will apply even if theterms of the trust were not communicated and
legete died before ommouncation so , in such cases courts wll say that secret trust failed but the
resulting trust was creasted for testator heirs

PARAPHRASE FROM HERE

unlike fully secret trusts where this is not mentioned in the will. While
this is the most important distinction between the two types, Viscount
Sumner in Blackwell v Blackwell[xxiv] has stated that in substance there
is no relevant difference between fully secret and half secret trusts

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