ABSTRACT
A secret trust is a trust of which there is, prima facie, no evidence of its existence in a testator’s will. The secret trust is probably an example of an express trust although there is debate (both judicial and academic) about whether it might be a constructive trust. It appears, on a reading of the relevant clause in the will, that property has simply been given to the recipient and that they are both the legal and beneficial owner of it. Unbeknown to readers of the will, however, the recipient is not the beneficial owner of it. Instead, he will have been asked by the testator (obviously before the testator’s death) to hold the property on trust for the real beneficiary. In that manner, a trust will be formed of the property after the testator dies. The recipient will own the legal title and the ‘real’ beneficiary will enjoy
the equitable interest. A trust will have been formed by the testator but its existence will be kept secret from the world at large. Sometimes these trusts are known as ‘fully’ secret trusts, in part to differentiate them from ‘half ’-secret trusts.
