In the case of Re Stead,[vi] there were two trustees, but the testator only informed one of their intentions. Application of the principle to secret trusts in good conscience, Undoubtedly, this principle is of great importance to the enforcement of secret and half secret trusts, and as seen above, it had been used by the courts to reach a fairer decision than statutory or common law formalities would allow. IT MUST BE CLEAR THAT THE PERSON SETTING UP THE TRUST INTENDED TO IMPOSE A BINDING LEGAL OBLIGATION ON THE TRUSTEE, NOT MERELY A MORAL OR FAMILY OBLIGATION [at para 85] per Etherton LJ for a summary of the view that such trusts do not always depend on the establishment of any actual agreement. Also, It is essential that the terms of the intended trust are consistent with the later will. First in Kasperbauer v Griffiths [2000] WTLR 333 the Court of Appeal had summarised the law in this area and pointed out that the question was whether the testator intended a trust or ' a mere. This was the key issue to be decided by Deputy Master Rhys in the EWHC, complicated by the fact that the trust, if it existed, was secret or half-secret. The author of this piece, in line with Penner and Critchley, finds this theory somewhat unconvincing[lvii]. Example case summary. Secret trusts come in two types: half secret trusts and fully secret trusts. Pallant v Morgan [1953]: the defendant and the plaintiff (i.e. Kasperbauer, 05-1273, the case now before the Court. It is the secret nature of these trusts which cause difficulty with their enforcement. Normal requirements for testamentary trusts: must comply with s 9 Wills Act 1837, 2. A more recent version of these Secret Trusts A Mutual Will is where two or more people agree to make wills and not to revoke those wills without mutual consent i.e. [lviii] Garry Watt, Todd & Watts Cases & Materials on Equity and Trusts, (9th edn, OUP, 2013) 480. 5. Kasperbauer v Griffith requirements Intention Communication Acceptance Reliance Problems Conclusion. statutory relief, below), although Re K (Deceased) 1986 says involuntary manslaughter is not included, Dunbar v Plant (Suicide Pact) a suicide pact survivor may be able to get property still. Ditto v. Edwards . [i] Gary Watt Trusts and Equity (4th edn, OUP, 2010) 180. Modified February 24, 2009 . Re Rees [1949] Ch 541 Here the CA said no in the case of a half secret trust because this would be contrary to the express provision in the will that he takes the property as a trustee. An example of this is Re Boyes. The legatee is thus not bound to pass the property on to the intended beneficiary. As wills are, by nature, public documents open to scrutiny, the concealment of identity that a secret trust provides is vital for those desiring a degree of privacy in the final disposal of their estate. His wife did not speak during or after this declaration. An alternate (but weaker) theory: dehors the will, However, it is false to state that is solely thus equitable principle that enables the enforcement of secret trusts. States obiter that secret trusts are upheld to prevent them being used as instruments of fraud, so arguably secret trusts are constructive trusts, meaning a secret trust of land does not need to comply with the s. 53(1)(b) formalities, as per s. 53(2) LPA 1925. Validity: Secret trusts appear to be exempt from statutory formalities. This requirement was elucidated further by Wallgrave v Tebbs[xiii] wherein it was held by Wood VC that where the intended trustee expressly promises or by silence implied that they accept the obligation they become bound by it. The testator in that their intentions are disregarded or the intended beneficiary in that the gift left to them falls to another? If the courts were to take the statute upon face value, the intended beneficiary in either secret or half trusts would never receive the property left to them. L.I. Kent v Griffiths. Watt writes that the secret trust may initially have been created in response to the worries of men wishing to make provisions for a mistress and illegitimate children, and it was in reaction to this that the judges of the Chancery division permitted the creation of secret trusts, despite the lack of formality required by the Wills Act.[i]. In the second scenario, wherein the legatee understood that they were never intended to keep the property, it is in the interests of their conscience to prevent them from keeping the gift. It could be strongly contended that, it would, in fact, be in better conscience to ensure that the children were provided for, but the court did not do so. It was held by the court that Hereden was bound by the promise he made to the Duke of Suffolk to take ownership of his estate for the benefit of the Duchess, his wife. 0R\oWd_W|/3o3kxI-f9ugDaqSqNL^^g.f?4~bP'+;:az?h6eNgefPyUWy)(FaH;pZR9&|e/|'& 5}A. Buy the full version of these notes or essay plans and more in our GDL Equity and Trusts Notes. These trusts are imposed over property that is only ascertained upon the administration of the estate and are subject to the wills rules on abatement and ademption (essentially the potential failure of the gift) like any other. Secret trusts therefore arise where a testator decides to leave ostensible legacies to someone whom the testator really wants to act as trustee for an intended but undisclosed beneficiary of that legacy provided always that the obligation is a trust obligation and not merely a moral obligation: Kasperbauer v Griffith [2000] P. 334 U. S. 105. Just fewer than twenty relatives challenged his sister, the testatrixs will, alleging that her brother had received the legacy on secret trust for them. Re Snowden 1979 In this case, testator statement = 'my wife knows what she has to do with the house' HELD - intention was not clear. The role for restitutionary remedies for unjust enrichment: Review of Recent Cases, Public Institution for Social Security v Al-Rajaan and others [2022] EWCA Civ 29, An unwarranted approach - Costs orders against solicitors acting without authority, Lessons from a successful fraudulent calumny claim: Whittle v Whittle [2022] EWHC 925 (Ch), Checklist: Supplier contracts and unforeseen events (USA), Checklist: Processor due diligence (data protection and cybersecurity) (UK), Checklist: What to include in your organisations privacy notice (UK). No appeal was taken from the order. o 2. "Fraud theory" - we enforce them otherwise it would vs. the equitable theory that you cannot use statute for fraud - but unclear who this 'fraud' is being committed against. (McCormick v Grogan; Kasperbauer v Griffith) . The conduct of the offender and the deceased, as well as such other circumstances as appear to be material and where the justice of case requires the rule to be modified. One way this is done, as the stimulus question suggests, is to apply the equitable maxim that statute and common law shall not be used as an engine of fraud. Case law shows that indeed, this is evidence of the willingness of equity to contravene statutory principles to achieve a result which the court considers to be in line with good conscience.. The testator declared in front of his family that he would bequeath his house and sum of his pension benefit to his wife on the condition that the money would be used to discharge the mortgage on the house. The proceeds of this eBook helps us to run the site and keep the service FREE! To use the Law of Property Act 1925 to defeat Ms Bannisters beneficial interest would be a fraud. In Re Snowden,[xxi] the residue of a testatrixs estate was left to her brother who she had lived for the last six months of her life. [42] It is no coincidence then, that communication and acceptance are two of the requirements for the recognition of ST's. [43] Joe Hand Promotions, Inc. v. Griffith, No. It made clear that while the exact date of the informal agreement is not relevant, it is essential that the precise object of the trust was communicated clearly to the trustee, and that the trustee then accepted the trust during the settlors lifetime. The principle that equity will not be an engine of fraud is applied to uphold secret trusts to ensure that the testators wishes are complied with as far as possible, but the three requirements of intention, communication and acceptance ensure that the equity is retrained from making decisions purely because it considers them in line with good conscience.. What must be communicated a) Existence of the trust o, Wallgrave v Tebbs: if a trust is to be enforced vs. an apparent absolute legatee then there must be communication of the fact of the trust, If the fact of the trust is communicated inter vivos, the legatee cannot take beneficially as his conscience is bound, Terms as well as its existence must be communicated inter vivos, Re Boyes: terms of the trust were discovered after death in unattested documents - held to not having been properly communicatedCA held that there was a resulting trust to the testator's estate as original trust had not been properly communicated. students are currently browsing our notes. But the manner in which those wishes had been expressed and the fact that Ms Richards wishes were not (as the Court found) for the Claimant to be the sole recipient of her jewellery, led to the conclusion that the answer to the question had Mrs Richards intended her wishes to be sanctioned by the authority of the court? was: no. [xxxix] J E Penner The Law of Trusts (9th edn, OUP, 2014), 176. o, Hodge: thinks it's a fraud on both the testator and the secret beneficiary - but theory only really works with FTF (as with HSF it is clear there is a trust on the face of the will), HSF: Blackwell and Blackwell - they happen outside the will - so we endorse themSo we circumvent the statutory formalities of s9 of the Wills Act, Secret trust operates by the declaration - not inside the will, Re Gardner (No. The claimant was having an asthma attack. Secret trusts are testamentary dispositions as the testator can revoke the trust at any time before death by communicating with the secret trustee, by destroying the will or creating a new one. As previously stated, another equitable principle says equity follows the law in the event of conflict, equity may circumvent the common law but it does not seek to override it. In this case, the testator left a legacy which in total amount to 12,000 to five people by a codicil to their will and instructed that the income should be applied for the purposes indicated by me to them, with provision to apply two-thirds of the amount to such person or person indicated by me to them. All rights reserved. See the case of Crabb v Arun District Council [1976]. 39 0 obj <> endobj While the origins of secret trusts are old, they are, are Meryl Thomas notes far from obsolete.[lvi] An exploration of the law has revealed that the two types, fully and half secret trusts, must fulfil three requirements before they can be held as valid, and if they do not they shall fail. Why should equity, over a mere matter of words, give effect to them in one case and frustrate them in the other?[xxv], Blackwell v Blackwell[xxvi], described by Watt as a classic instance of a valid half secret trusts[xxvii] is the basis for another noteworthy requirement regarding half secret trusts. In Titcombe v Ison there was no doubt that the testator had expressed informal wishes regarding her jewellery. The overriding purpose behind secret trusts is to enable property to be left in a will without explicitly naming who the property is being left to by a bequest to a person who has previously promised to hold that property as trustee for the intended recipient. It would thus be unconsciousable to let an informed trustee keep the property. Hence, in keeping with a strict view of the statute, secret trusts are not validly created. B200076. A constructive trust will arise at the time that the necessary conditions are met and will be retrospective; while estoppel concerns asserting an equitable claim against the true owner.. It is sufficient that a restraint of trade or monopoly results as the consequence of the defendants' conduct or business arrangements. Research Methods, Success Secrets, Tips, Tricks, and more! It is submitted overall that stimulus question is partially correct, but requires rephrasing. However, Alastair Hudson observes that there is alternative authority[xv] from Romer J in Re Gardner. (a) It is not always necessary to find a specific intent to restrain trade or to build a monopoly in order to find that 1 and 2 of the Sherman Act have been violated. Some woodland was for sale and the parties agreed that the defendant would bid for it for them both, with the exact proportions on which the land was to be held to be agreed later. Gorney watched all of this from his hiding place. The children alleged that their father has created a fully secret trust because, at the time of the declaration in front of his family, he had said that his wife knew what she had to do. However, this argument was unsuccessful. They can arise irrespective of the intention of the parties. 40 0 obj <> endobj 42 0 obj <>/XObject<>>>/Contents 43 0 R/StructParents 0/Tabs/S/CropBox[ 0 0 595.2199 841]/Rotate 0>> endobj 43 0 obj <>stream Keep a step ahead of your key competitors and benchmark against them. [xlviii] Diana Kincaid The tangled web: the relationship between a secret trust and the will [2000] Conv 420, 421. privacy policy. In a fully secret trust, there are two possible scenarios. In that case the Court was dealing with a trust allegedly created by a letter giving directions regarding the testators property in which the testator had requested that his friend deal with the property as the testator would have done had he been alive. No. The most equivocal case is Davies v Otty, above 7, . This is because we have a split of interests legal and equitable. Upon her death, the deceased - Ms Richards - who had no children of her . [xlii] Emma Warner-Reed, Equity and Trusts, (Pearson, 2011) 9. In support of the assertion that this equitable principle allows the enforcement of secret trusts in good conscience, Watt states that secret trusts are not only useful in their own right; they provide a useful analogy and precedent for anyone attempting to find a way around testamentary formalities. Share this: Facebook Twitter Reddit LinkedIn WhatsApp Borman v Griffith [1930] 1 Ch 493. It is contended that the application of the equitable principle does not exactly exhibit the equitys willingness to reach a decision in good conscience, but rather to reflect the true intentions of the parties. In order to understand why the courts would permit the enforcement of these trusts, it is important to discuss the rationale behind their use. Her doctor attended her home and called for an ambulance at 16.25. Summary of this case from Amster v. Mulberg. The property is held on trust by someone who has made a promise to the testator to hold the property on trust for the eventual recipient. A constructive may arise on the same facts as a proprietary estoppel In both cases, it would be inequitable to deny the claimant's proprietary rights there is some support for the notion that both doctrines should be merged into a single law of restitution. Moreover, it has been shown that the equitable principle is not always used to justify the enforcement of fully and half secret trusts. With a secret trust the testator normally leaves property to someone, prima facie an outright gift. It is possible for secret and half secret trusts to be created with reasonable formality with the trusts properly set out in writing in some, private, document outside (or dehors in the old language found in some cases) the will. The creation and validity of fully secret trusts. Certainly, the McCormick[xliii] trust failed on the basis that it was a moral obligation alone. To say that asecrettrust exists outside the will is to give a false impression.[li] In response to the argument that the trust falls inter vivos, outside the scope of section 9 of the Wills Act, Critchley comments that this construction of the facts seems a little implausible, since the average testator in a secret trust case arguably believes that he is stating the trusts on which his property will be held after his death, rather than declaring an immediate trust.[lii], Furthermore, J E Penner bluntly states that the the dehors the will theory is fundamentally unsound[liii]. This is not possible in half secret trusts: unlike fully secret trusts, intention is obvious as it is stated in the will. Registered Office: Artillery House, 11-19 Artillery Row, London SW1P 1RT, United Kingdom. Equally, it has not been proven that the property was to be passed onto the intended beneficiary, so the rules of intestacy apply and the property falls back into the testators estate. What is most significant here was that it was clear that they knew of the existence of their obligation but failed to physically object. The trusteeship was expressly by one, while the other remained silent and the court held that this silence amounted to acceptance. A recent example of this was the estate of the painter Lucian Freud: Re Freud [2014] EWHC 2577 in which the claimant executors who were beneficially entitled to the whole residuary estate on the face of the will made clear that they had received the estate subject to a fully secret trust. In Re Keen[xxxiii], the testator, Keen, gave a sealed envelope to the intended trustee and they knew that the envelope contained the name of a woman to whom Keen was not married even though he did not open it until after Keens death. Home. He noted that the manner in which Ms Richards' wishes had been expressed and that she had not wanted Mrs Titcombe to be the sole recipient of the jewels, suggested that she had not wanted her wishes to be sanctioned by the authority of the court. Communication of trust by trustee ('outside will') o 3. This justification does not rely on a contravention of statutory principle. Summary . Case law has established that secret and half-secret trusts can be established either formally in writing, as in the Lucien Freud case (Re Freud, 2014 EWHC 2577), or where the terms of the trust have not been committed to writing in full or at all, as in Ottaway v Norman (1972 Ch 698), says Owen Curry of XXIV Old Buildings. If these three conditions, specifically intention, communication, and acceptance are not satisfied, the secret trust will not be held as valid. If a the three requirements are not met, communication did not take place before or at the time of the will or all the trustees are not informed, the trust will fail and the property will revert back to the testators estate. Kasperbauer v Griffith [2000] (w.r.t legal obligation) Definition. Secret trusts therefore arise where a testator decides to leave ostensible legacies to someone whom the testator really wants to act as trustee for an intended but undisclosed beneficiary of that legacy provided always that the obligation is a trust obligation and not merely a moral obligation: Under the general principles of constructive trusts, it would be unconscionable for the fraudster to retain property acquired by fraud (, In Re Ciro Citterio Menswear, land was acquired by 2 directors, by money was loaned to the company in breach of the Companies Act 1985. [ix], The intention to create a trust and its terms can be communicated in writing, orally or even by an agent. This is not equitys concern. One new video every week (I accept requests and reply to everything!). In half secret trusts the wording of the will indicates that there is a trust. The content displayed here is subject to our disclaimer. At his ninth overall Games. Decided: January 26, 2009 Law Offices of Tamila C. Jensen, Tamila C. Jensen, Granada Hills; Nancy Reinhardt, San Bernardino; William F. Kruse, Pasadena, for Plaintiffs and Appellants. Snowden [1979] 2 WLR 654, Kasperbauer v Griffiths [2000] WTLR 333 (CA) (2) Communication of the terms of the secre t trust to B . Where the legal owner has made some representation to another that they will have some beneficial interest in land; and that person, in reliance on that representation, acts to their detriment, then a proprietary estoppel may arise. Hudson comments that there is a problem in categorising the secret trust.[ii]. It thus follows the trust is created dehors the will and is not opposing Wills Act. It was held the directors were not automatic constructive trustees of the money because they may approve the loan, Although the Reid principle was again later affirmed in FHR European Ventures LLP v Cedar Capital Partners LLC [2014], with Lord Neuberger backtracking on what he said in Sinclar Investments v Versailles Trade Finance Ltd [2011]. As articulated earlier in this piece, the difficulty faced in the creation of secret trusts that this permits this section of the Wills Act 1837 to be used as an engine of fraud against the testator as the trustee may claim the property for themselves in fully secret trusts. Hence it appears that the principle does go some way to allowing the courts to reach decisions they find in good conscience., Equally, Emma Warner-Reed cites the example of section 37 of the Matrimonial Proceedings and Property Act 1970. Secret trusts - mechanism: either a) outright gift to the intended trustee in the will (fully secret) or gift in the will to the intended trustee stated to be 'on trust' (half secret), 4. are necessary (s.35(2) LPA 1925) (Kasperbauer v. Griffith) iv. Standard of proof: onus is on the person claiming that a trust exists: standard is the normal civil standard (Re Snowden) Justification for enforcing secret trusts: 1. The failure of a secret trust: the consequences for the property. However, the court have continued to use the terminology of constructive trusts and the imposition of constructive trusteeship despite the conceptual problem, In the area of a joint enterprise for the acquisition of land, the two concepts [estoppel and constructive trust] coincide. Yaxley v Gotts [2000] (Robert Walker LJ). claimant) owned adjacent land. Indirect contributions, such as homemaking, will not be considered unless there was an express agreement to recognize them. Constructive trusts will give rise to equitable interests: Equitable remedies such as tracing and account will be available to the beneficiary, There is no obligation to invest or to observe the usual duty of care for a constructive trustee it is unreasonable to impose such obligations in cases in which they did not know that they were a trustee, The duties of constructive trustees arent that clear and will vary by the circumstances, Lonrho v Fayed (No 2): it is a mistake to suppose that in every situation in which a constructive trust arises the legal owner is necessarily subject to all the fiduciary obligations and disabilities of an express trustee (Millet J). Under this section, a spouse who makes a substantial financial contribution to improve a property is treated as then acquiring a share in its beneficial interest, whether or not they have a legal interest. By applying this principle, the court can address each secret trust on its own unique facts and circumstances, and, certainly, as Watt states, in the exercise of discretion, a principle or maxim is a more flexible and useful tool than a rule.[lviii], Bannister v Bannister [1948] 2 All ER 133, Katherine, Duchess of Sufflock v Hereden [1560], Matrimonial Proceedings and Property Act 1970 s37, Hudson, A, Great Debates in Equity and Trusts (Palgrave 2014), Hudson, A, Understanding Equity & Trusts, (5th edn, Routledge 2015), Penner, J.E, The Law of Trusts (9th edn, Oxford University Press 2014), Warner-Reed, E, Equity and Trusts, (Pearson 2011), Watt, G, Todd & Watts Cases & Materials on Equity and Trusts, (9th edn, Oxford University Press 2013), Watt, G, Trusts and Equity, (4th edn, Oxford University Press 2010), Council B, Clean Hands Need Not Be Spotless (1993) 143 New Law Journal, Critchley P, Instruments of fraud, testamentary dispositions, and the doctrine of secret trusts (1993) 115 Law Quarterly Law 631, Gardner S, Two Maxims of Equity (1995) 54 (1) Cambridge Law Journal 60, Kincaid D, The tangled web: the relationship between a secret trust and the will [2000] Conveyancer and Property Lawyer 420, King L In Practice: Legal Update: Probate: Secret and half-secret trusts (2014) Law Society Gazette 27, Mee J, Half Secret trusts in England and Ireland [1992] Conveyancer and Property Lawyer 202, Thomas M, The longer you look at a [will], the more abstract it becomes construction and secret trusts: Rawstron and Pearce v Freud (2014) 1 Trust Law International 157. 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