Secret Trusts

Sellack v. Harris

A secret trust can arise without a will if the interstate successor has made an agreement with the deceased to hold the property on trust for another.

Creswell v. Creswell

s.15 Wills Act, which states that witnesses or their spouses cannot benefit from a will does not apply to trustees under the will.

Re Gardner

Alternative argument for the predecease of secret beneficiary concluding that the benefit should past to the beneficiaries estate.

Moss v. Cooper

Communication can be by a Testators Agent.

Communication must be before death but can be before/after execution for FST

Re Keen

Communication may be under sealed orders

Re Maddock

Orbiter: When a trustee predeceases testator, secret beneficiary gets nothing.

Blackwell

Orbiter: When a trustee predeceases testator, court would not allow a trust to be defeated for trustee’s renunciation

McCormick v. Grogan

FST Justification: Fraud Theory HoL defined fraud as: 1. scheme to induce owner to make a will/refrain from making it in order to befit. 2. refusal to comply with an agreement relied upon by T

Re Snowden

prevention of fraud could not be used as justification, no ST was found.

Blackwell v. Blackwell: Lord Buckmaster

Justification for HST: Modified Fraud Theory. Saw fraud as cheating the secret beneficiaries,

Blackwell v. Blackwell (Viscount Sumner)

Justification for HST - Dehors the Will theory. Sts are regarded as intervivos declarations of trust by testators, which is constituted at death.

Re Bailee

Argues that formality requirement of s.53(1)(b) would apply for HST if dehorn the will theory is applied.

Ottaway v. Norman

formality requirements for s.53(1)(b) was not discussed. oral HST of land was upheld.

Re Young

applied dehors the will theory

Re Stead

When there are two trustees in TIC only those trustees told will be bound by it. In JT communication before the will can be to only one but they will both be bound.

Re Colin Cooper

only the amount communicated was binding and the rest resulted in an ART

Re Huxtable

external evidence is admissible only if in line with the will.

Re Rees

half secret trustee cannot benefit from the trust if not stated in the will.

Re Tyler’s

Facts in Re Rees indicated that trustee was not supposed to benefit. Otherwise HStrustees can benefit from it

Wallgrave v. Tebbs

Communication to trustee is required, or trustee will hold absolutely.

Re Boyes

when trustee will not be communicated terms of trust will hold the property on ART for the residuary beneficiaries or intestate successors

Re Colin Cooper

The CA held that the first 5000 pounds was to be held on the HST, for that was the extent of the subject matter communicated; the remainder went on ART into the estate. This rule that the trust only binds to the extent communicated applies to FSTs as well.