FULLY SECRET + HALF SECRET TRUSTS [notes]
secret trusts (in respect of testamentary trusts) are exceptions to the general rule that
declarations of trusts require formalities = they do not need to fulfill the requirements
under s.9 Wills Act 1837 to be valid
• why is this so? due to them arising “dehors the will”, meaning outside the
will, it then means that the formality rules of the Wills Act do not apply to
them
elements which must be proved, as per Brightman J in Ottaway v Norman [1972] Commented [SY1]: in addition to the following
requirements, Kasperbauer v Griffith [2000] principles that
1. testator’s intention to make a trustee a trustee and not a donee the trust must satisfy the three certainties (intention,
subject matter, objects)
o Re Snowden (1979): precatory words are insufficient to create a trust //
Commented [SY2]: a person who receives a gift, OR one
testator left property to brother in hopes that he would do with it what she who is given power of appointment
thought would have wanted → Megarry VC found no intention on the
settlor’s part that he should come under an obligation to distribute the
trust, but merely a moral duty
2. testator’s communication of his intention to the trustee
➢ fully secret trust = must happen BEFORE the testator’s death (during the
testator’s lifetime)’
▪ if intended trustee is only informed about the trust at all after
testator’s death = absolute gift
➢ half secret trust = ON (at the time of) or BEFORE execution of testator’s Commented [SY3]: = when the will is signed
will
▪ second rule: terms must be consistent with prior communication
to the trustee // ‘my house to B (trustee) to hold on such trusts
as I shall communicate to him’ = invalid because it suggests that
communication will/may lie in the future, different from ‘… as I
have communicated to him’
▪ Re Keen [1937]: the will must state that there has been prior
communication + must’ve in fact been prior communication Commented [SY4]: or conterminous = something that has
the same extent or scope as something else
o Re Boyes (1884): not enough if, before his death, the testator had
communicated intention to trustee of the trust but not of its terms + letter
containing such terms is found only after his death = trust will fail
because they weren’t communicated during his lifetime
o Re Keen [1937]: sealed envelope containing details of secret trusts to
be opened only on testator’s death is valid // Lord Wright: “a ship sailing
under sealed orders, is sailing under orders through the exact terms are
not ascertained by the captain till later” (trustee knows he is a trustee but
does not know who the beneficiaries are yet)
3. trustee’s acceptance of trusteeship either expressly or impliedly
secret trusts (in respect of testamentary trusts) are exceptions to the general rule that
declarations of trusts require formalities = they do not need to fulfill the requirements
under s.9 Wills Act 1837 to be valid
• why is this so? due to them arising “dehors the will”, meaning outside the
will, it then means that the formality rules of the Wills Act do not apply to
them
elements which must be proved, as per Brightman J in Ottaway v Norman [1972] Commented [SY1]: in addition to the following
requirements, Kasperbauer v Griffith [2000] principles that
1. testator’s intention to make a trustee a trustee and not a donee the trust must satisfy the three certainties (intention,
subject matter, objects)
o Re Snowden (1979): precatory words are insufficient to create a trust //
Commented [SY2]: a person who receives a gift, OR one
testator left property to brother in hopes that he would do with it what she who is given power of appointment
thought would have wanted → Megarry VC found no intention on the
settlor’s part that he should come under an obligation to distribute the
trust, but merely a moral duty
2. testator’s communication of his intention to the trustee
➢ fully secret trust = must happen BEFORE the testator’s death (during the
testator’s lifetime)’
▪ if intended trustee is only informed about the trust at all after
testator’s death = absolute gift
➢ half secret trust = ON (at the time of) or BEFORE execution of testator’s Commented [SY3]: = when the will is signed
will
▪ second rule: terms must be consistent with prior communication
to the trustee // ‘my house to B (trustee) to hold on such trusts
as I shall communicate to him’ = invalid because it suggests that
communication will/may lie in the future, different from ‘… as I
have communicated to him’
▪ Re Keen [1937]: the will must state that there has been prior
communication + must’ve in fact been prior communication Commented [SY4]: or conterminous = something that has
the same extent or scope as something else
o Re Boyes (1884): not enough if, before his death, the testator had
communicated intention to trustee of the trust but not of its terms + letter
containing such terms is found only after his death = trust will fail
because they weren’t communicated during his lifetime
o Re Keen [1937]: sealed envelope containing details of secret trusts to
be opened only on testator’s death is valid // Lord Wright: “a ship sailing
under sealed orders, is sailing under orders through the exact terms are
not ascertained by the captain till later” (trustee knows he is a trustee but
does not know who the beneficiaries are yet)
3. trustee’s acceptance of trusteeship either expressly or impliedly
