Flashcards
Secret Trusts
Cards in this deck (18)
- 1s.9 Wills Act 1837Provides that valid will must be in writing, signed and witnessed. However, doctrine of secret trusts is exception to this.
- 2Fully Secret Trusts (FST)T gives absolute gift to legatee but secretly asks him to hold property for benefit of another - trust hidden from view and only revealed by extrinsic evidence.
- 3Half Secret Trust (HST)T gives to legatee as trustee but only tells him identity of objects of the trust - existence of trust revealed in will but not B's.
- 4Requirements - Ottaway v Norman1) Intention of A to subject C to obligation in favour of B.
2) Communication of intention to C
3) Acceptance of that obligation by C either expressly or by acquiescence. (Moss v Cooper) - 5CommunicationFST: Before T's death
HST: Before or at the time the will is made - 6FST - Wallgrave v TebbsLegatee not aware of testators wishes until after his death. Legatee did not therefore hold on trust for secret B.
- 7FST - Communication - Re BoyesT (testator's solicitors) told of trust but not the terms in testator's lifetime. Court - no valid ST created. Trustee held property on RT for testator's next of kin. Applied Wallgrave v Tebbs
- 8Constructive communication - Re KeenLord Wright: Ship sailing under sealed orders" - Testator may give sealed envelope to be opened on his death.
- 9Evidence must show clear intention - Re SnowdenElderly widow living with brother, no children. 5 nephews/nieces and 13 grand nieces/nephews. Unsure how to distribute so left amount to her brother. Had no. convo's with solicitors - wanted all children to get something equal but her 'brother will know what to do.' After signing will, she died. So did brother. Q was who got property?
Court - precatory words insufficient to create trust - merely moral obligation on brother. Brother took property free from trust which passed onto his next-of-kin. - 10Ottaway v NormanH Left bungalow to housekeeper who's son then claimed the property after housekeepers death. H told housekeeper on multiple occasions bungalow was to be hers for her life and then pass to his son. Son's action founded on existence of trust between H and housekeeper. Court found in favour of son.
- 11HST - Blackwell v BlackwellFor purposes indicated by me to them. Trust accepted prior to codicil. HL held trust valid - Acquiescence on legatee's part. Stricter requirement for HST communication - must take place on/before A's making of the will.
- 12Re KeenWill referred to purposes to be communicated. Prior to making the will, testator gave trustee sealed envelope. Court - sealed envelope is valid communication. Trust still failed because needs to be communicated before will made. 'purposes to be communicated' contradicts what happened. Terms already communicated. Therefore, will that signed and witnessed clear inconsistency.
- 13Other common law jurisdictions have declined to impose stricter test for HSTs than FSTsIreland: Re Browne
New South Wales - 14Traditional view of allowing ST (Fraud theory)Outside evidence is allowed to prevent fraud. S.9 Wills Act cannot be used as instrument of fraud.
- 15McCormick v GroganA makes will leaving all property to C. A tells C this on death-bed, C questions, A says 'I will not have it any other way.' A also tells C he will find letter containing instructions including to pay annuity to B. Court - no binding trust on C - failed ethical and moral obligation but there was no fraud. Enforcement of ST would serve no valid purpose where no fraud.
- 16Problems of Fraud theoryHST - is there any risk of fraud? Existence of trust revealed in will. T does not benefit if it fails. Note Blackwell v Blackwell - possibility of fraud on secret beneficiaries - Lord Buckmaster: the real beneficiaries are defrauded.
- 17Dehors the Will/Outside the Will theory: Secret trusts arise outside ("dehors") the willMegarry V-C in Re Snowden - whole basis of ST is operate outside will.
Critchley - dehors theory flawed. In essence, mistake is to confuse outside the will with 'outside the Wills Act'. Dehors theory needs and fails to demonstrate truth of latter and often ends up resting on former which inadequate as justificatory argument. ST about giving effect to settlers intentions, should not fall outside the will. - 18Rawstron v Freud2004 Will - gave residue of estate to trustees on trust to sell or retain it to persons named [the claimants] and set out in deed already executed by me to them. 2004 Will revoked to 2006 Will: Give all residue of estate to two named persons jointly. Doesn't mention trust so appears as absolute gift. Q: Does 2006 Will make C absolutely entitled to residuary estate?
Held: Absolute gift subject to FST. In light of ordinary meaning of words used, overall purpose and provisions of will they favoured D's argument i.e. that any trust imposed on residuary estate can only have been HST.
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- Equity Flashcards on Secret Trusts, created by Chloe Garton on 13/04/2018.
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- Chloe Garton
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