• Fully secret trust:
o McCormick v Grogan: requirements for a valid secret trust i.e. (i) an intention to create a trust; (ii) communication of the settlor’s intention to create a trust to the trustee during her lifetime; and (iii) an acceptance by the trustee of the trust obligation.
o Re Boyes: t made a will leaving his estate to his solicitor who was executor of his estate. Letter found after his death outlining the objects who were to benefit from the estate. Solicitor held prop as secret trustee. Therefore, there was a resulting trust in favour of the t’s next of kin. The fully secret trust could not be enforced. There are problems where multiple trustees appointed and one or more of them had not received communication of their secret trust obligations o Ottaway v. Norman: t left house and its contents to his housekeeper. He mentioned to one of his sons in her presence that he intended the house to be hers for her life and after her death; it was to pass to his sons. Housekeeper later received the prop under her late employer’s will. She, in turn, made a will leaving the house to the sons, which she later changed her will and purported to leave the property to a friend. It was held that the house was the subject of a secret trust, the housekeeper always having understood and implicitly accepted the trust obligation.
o Re Stead: distinction between tenants in common and joint tenants: (i) where prop is transferred to trustees as TIC, secret trust will only bind who have received communication of the trust and who have accepted their trustee duties. The others will take the prop beneficially if they do not have notice of the trust; and (ii) where prop is transferred to trustees as JTs; the trust obligations will bind the accepting trustees if the will was made before his acceptance and the others will take beneficially, but if this was done after the accepting the trustee’s acceptance, the trust obligation will bind both parties.
o Adding to the trust prop was seen in Re Colin Cooper, where t made a will leaving money on secret trust to 2 individuals jointly. Communication was made to both at the time the will was made, and then the sum of money under the will increased. This sum of money was referenced in the will as: “They, knowing my wishes, regarding that sum...”, but the increase was not mentioned to the trustees during t’s lifetime. Ct held that all the terms of the trust must be communicated to, and accepted by the trustees, therefore the first amount was subject to trust but the second amount was not.