chapter  10
29 Pages

Secret trusts and mutual wills

ByMohamed Ramjohn

A secret trust is an equitable obligation communicated to an intended trustee during the testator's lifetime, but which is intended to attach to a gift arising under the testator's will. A testator who wishes to create a trust over his property upon his death is required to express this intention as well as the terms of the trust in his will. On a testator's death his will becomes a public document and wills are consequently open to public scrutiny. The court's approach to the interpretation of wills is, in practice, very similar to its approach to the interpretation of contracts. A half-secret trust is intended when the will indicates or acknowledges the existence of the trust but the terms are concealed on the face of the will. Secret trusts and the mutual wills doctrine, although not of regular occurrence in modern society, have a great deal of significance in equity.