chapter  5
Secret Trusts and Mutual Wills
Pages 13

Secret trusts are normally employed where a testator wishes to provide for a secret benefi ciary, such as a mistress or an illegitimate child, but does not want to name such person as a benefi - ciary under his will, since a will once admitted to probate becomes a public document, and there would be no secrecy. The testator may therefore during his lifetime arrange with T, a trusted relative or friend, that he will leave property to T in his will, but that the property is to be held upon trust for the secret benefi ciary, whose identity will be disclosed to T. If T agrees to the testator’s proposal, then a secret trust will arise, and will be enforceable against T after the testator’s death. So long as there is suffi cient evidence of the secret trust, equity will not allow T to claim the property benefi cially but will compel him to hold it on trust. Viscount Sumner explained the doctrine thus: 1

The wills legislation, such as Wills Act 1837, s 9 (UK), Wills and Probate Act, Ch 9:03, s 42 (Trinidad and Tobago), Succession Act, Cap 249, s 61 (Barbados) and Wills Act 1840, s 6 (Jamaica) require testamentary dispositions to conform with the formal requirements of the legislation: that is to say, any gift or trust to arise on the death of a testator must be contained in a written document signed by the testator and attested by two witnesses. Any purported testamentary disposition which does not comply with the legislation is void. At one time it was thought that the doctrine of secret trusts fl outed the wills legislation, but was justifi ed on the ground that a statute should not be used as an instrument of fraud, 2 in the sense that it would be a fraud on the testator for the ‘secret trustee’ to plead that the secret trust was invalid because it did not comply with the statute, and claim the property for himself.