SECRET TRUSTS

SECRET TRUSTS

1. 3 required elements

   • Intention
     • Communication
       • Acceptance
         • Either expressly or by acquiescence OTTOWAY V NORMAN
       • WALLGRAVE V TEBBS Effective terms must be communicated, within testators lifetime
       • If terms not communicated will be a resulting trust RE BOYES
       • Communication must be of a legally binding obligation not just a moral obligation. McCORMICK V GROGAN
     • Must show intention or trustee will take absolutely

2. If trustees won't take on secret trust will result back

   • Once trust established if add extra property or beneficiaries
     • RE COLIN COOPER
       • Must be communicated to and accepted by trustees

3. Problems with co-owners

   • Tenants in Common
     • Joint Tenants
       • RUSSELL V JACKSON survivorship if not told at all, take absolutely
         • If 1 JT told prior to execution of will, ALL JT's will be bound
           • If told after execution, will only be bound if accept
     • RE STEAD If only 1 trustee informed, then only 1 is bound. Must be informed in testators lifetime

4. Death of Beneficiary

   • Trust operates outside of a will so property will pass to deceased beneficiaries next of kin
   • RE GARDNER