In Blackwell, Viscount Sumner stated the dehors the will concept of half secret trust
has perplexed UK courts and academics. This idea, according to Penner, is an
attempt to "hide the embarrassing mess" the court has gotten itself into by going
against the Wills Act of 1837. This essay will discuss the concept of secret trust, how
the informality of secret trust is justified, and how the trust is classified.
A fully secret trust emerges when a testator desires not to reveal his
testamentary and on the face of the will, he gives the property to a legatee, who
obtains the property in absolute right. A half secret trust, on the other hand,
emerges when legatee is named as trustee in the will to hold the property but the
conditions of the trust are kept secret. According to Kasperbauer v Griffith, a valid
trust must have a clear purpose from testator that secret beneficiary is the intended
beneficiary and the trust must be disclosed and accepted by secret trustee, as well as
in Blackwell. Blackwell, on the other hand, held that in half-secret trust,
communication must occur prior execution of the will, whereas communication can
occur prior to the testator's death as per Moss v Cooper.
The problem with this trust is that it does not meet the formality requirements of S.9
WA 1837 because there is no witness and it is not written. Evidence to substantiate
the trust that opposes or subsists outside the will is inadmissible once the will is
made legitimate. The fraud theory and the dehor the will theory have been used by
courts to support the existence of the secret trust and thus the admissibility of
evidence.
To begin with, as per Rochefoucauld v Boustead, as doctrine states that a statute
implemented to prevent fraud cannot be used as an tool of fraud in equity and
secret trust doctrine is intended to prevent fraud by secret trustee to testator or the
intended secret beneficiary, so S.9 WA should not be used to prevent fraud by the
secret trustee to the testator or the intended secret beneficiary. Secret trustee in a
full secret trust has complete control over the property. There is a risk that secret
trustee will engage in a fraudulent scheme to persuade the testator to create a
secret trust and then transfer the property to the secret trustee or that secret
trustee will refuse to perform what has been informally agreed upon, thereby
keeping the property for his own benefit as per McCormick v Grogan.Through the
case, a secret trust is justified in order to protect the testator's ability to dispose of
his assets as he sees fit (Critchley 1999).
The fraud theory, on the other hand, didn't explain half secret trust, because in half
secret trust, the secret trustee is on a trust of the property, and thus, unlike a secret
trust, he cannot took the property beneficially on his own; instead, the trustee will
hold the property for the testator's estate on the resulting trust (Re Rees). As Lord
Buckmaster explained, Blackwell extended the fraud theory by stating that under a
half-secret trust, the secret beneficiary is defrauded in the sense that his or her
anticipated beneficial interest is deprived. The problem is that if such a
detriment outweighs the benefits of the S.9 formalities, the S.9 would "barely
operate" because failing to meet the formalities, which renders the trust void, is the
has perplexed UK courts and academics. This idea, according to Penner, is an
attempt to "hide the embarrassing mess" the court has gotten itself into by going
against the Wills Act of 1837. This essay will discuss the concept of secret trust, how
the informality of secret trust is justified, and how the trust is classified.
A fully secret trust emerges when a testator desires not to reveal his
testamentary and on the face of the will, he gives the property to a legatee, who
obtains the property in absolute right. A half secret trust, on the other hand,
emerges when legatee is named as trustee in the will to hold the property but the
conditions of the trust are kept secret. According to Kasperbauer v Griffith, a valid
trust must have a clear purpose from testator that secret beneficiary is the intended
beneficiary and the trust must be disclosed and accepted by secret trustee, as well as
in Blackwell. Blackwell, on the other hand, held that in half-secret trust,
communication must occur prior execution of the will, whereas communication can
occur prior to the testator's death as per Moss v Cooper.
The problem with this trust is that it does not meet the formality requirements of S.9
WA 1837 because there is no witness and it is not written. Evidence to substantiate
the trust that opposes or subsists outside the will is inadmissible once the will is
made legitimate. The fraud theory and the dehor the will theory have been used by
courts to support the existence of the secret trust and thus the admissibility of
evidence.
To begin with, as per Rochefoucauld v Boustead, as doctrine states that a statute
implemented to prevent fraud cannot be used as an tool of fraud in equity and
secret trust doctrine is intended to prevent fraud by secret trustee to testator or the
intended secret beneficiary, so S.9 WA should not be used to prevent fraud by the
secret trustee to the testator or the intended secret beneficiary. Secret trustee in a
full secret trust has complete control over the property. There is a risk that secret
trustee will engage in a fraudulent scheme to persuade the testator to create a
secret trust and then transfer the property to the secret trustee or that secret
trustee will refuse to perform what has been informally agreed upon, thereby
keeping the property for his own benefit as per McCormick v Grogan.Through the
case, a secret trust is justified in order to protect the testator's ability to dispose of
his assets as he sees fit (Critchley 1999).
The fraud theory, on the other hand, didn't explain half secret trust, because in half
secret trust, the secret trustee is on a trust of the property, and thus, unlike a secret
trust, he cannot took the property beneficially on his own; instead, the trustee will
hold the property for the testator's estate on the resulting trust (Re Rees). As Lord
Buckmaster explained, Blackwell extended the fraud theory by stating that under a
half-secret trust, the secret beneficiary is defrauded in the sense that his or her
anticipated beneficial interest is deprived. The problem is that if such a
detriment outweighs the benefits of the S.9 formalities, the S.9 would "barely
operate" because failing to meet the formalities, which renders the trust void, is the
