chapter  9
9 Pages

SECRET TRUSTS AND MUTUAL WILLS

The fully secret trust Ottaway v Norman (1972) A fully secret trust must satisfy THREE requirements: intention; communication any time up until the death of the testator and acceptance by the secret trustee Re Snowden (1979) A secret trust will only arise if the words used impose a trust rather than a moral obligation (intention) Wallgrave v Tebbs (1855) A letter found amongst papers after the testator’s death is not proper communication of a secret trust to a secret trustee Re Stead (1900) Where secret trustees hold the trust property as joint tenants communication of the trust to one of the joint tenants will be suffi cient Re Boyes (1884) There is no communication if there is a suggestion that communication will be made after the execution of the will and it is not made until after the death of the testator Re Cooper (1939) Where a codicil adds further property to the trust then this too must be communicated to the secret trustee Moss v Cooper (1861) Silence can constitute acceptance of a secret trust by a secret trustee

McCormack v Grogan (1869) The basis of secret trusts was originally the prevention of fraud. If a testator tells the secret trustee that a trust is to be established then it would be a fraud on the part of the trustee to deny it.