ABSTRACT
A secret trust arises when a testator wishes to benefit some person who, for some reason, cannot be named in a will. Typically, the testator leaves property to a trusted confidant by will on the understanding that that confidant will hold the property for third parties who are not named in the will. Equity will enforce this arrangement as a secret trust so that the confidant cannot claim to be beneficially entitled to the property left in the will. This secret trust operates in contravention of the provisions of the Wills Act 1837 and therefore illustrates equity’s determination to prevent statute being used as an engine of fraud. 1
Secret trusts fall into two main categories: fully secret trusts and half-secret trusts. Fully secret trusts arise in circumstances where neither the existence nor the terms of the trust are disclosed in the terms of the will. Oral evidence of the agreement between the testator and trustee is generally satisfactory. The settlor must have intended to create such a trust. That intention must have been communicated to the intended trustee. The trustee must have accepted the office and the terms of the trust explicitly or impliedly. 2
For a valid half-secret trust, the settlor must intend to create such a trust. Further, the existence and terms of the trust must be communicated to the intended trustee 145before the execution of the will. The intended trustee must then accept the office of trustee and acquiesce to the terms of the trust. 3
