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Secret Trust & half-secret trusts, secret trusts - england -…
Secret Trust & half-secret trusts
fully secret trust
no indication of secret trust within will
risk - person not adhering to it as no indication of it in the will
half-secret
leave money to X to give someone indicated
elements required
McCormack v Grogan
intention to create a secret trust
secret trustee accept
communication of secret trust obligation
communication and acceptance
english approach
Blackwell v Blackwell
for half secret trust must be communicated and acccepted prior to will being made - one legatee informed in details others only given outline - valid as details laid out at time of execution - stricter requirements for half-secret than secret -
Half-Secret Trust
Walgreave v Tebbs
letter never sent, never communicated so trustees kept money (despite knowing secret trust intended but never communicated details)
Re Boyes
- paying solicitor to be secret trustee, testator
never communicate who secret beneficiary wa
s when alive, letter later found giving details - couldn't be enforce, had accepted was going to be secret trusee but not who to pass money on to
Re Keens estate
- sealed enveloped delivered to intended trustee containing terms on who to give upon passing sufficient communication - not to be opened till after death -void - as as created after the will (only found out after) and had been written before will written - inconsistency
irish approach
Riordan v Bandon
communicated and accepted prior to death - prior to death testator inform legatee he intended to leave legacy to a certain individual
Prendiville v Prendiville
testator left estate to wife, had communicted instructions to wife who had accepted - can take place anytime up to death of testator (different to english approach)
acceptance
implied
Ottaway v Norman
- wealthy elderly man with son and housekeeper, said to both i'm leaving to housekeeper to give to my son - housekeeper held to have accepted it - as said in front of her and she didn't argue it
Collin Cooper
all terms accepted and communicated - left sums to 2 people of 5k - - legacy increased but not communicated - held all terms must be communicated and accepted - first 5k valid, next 5k not valid
Re Stead
multiple trustees - look at wording of will if intended to be communicate to all or some - if for some rule applies - all joint tenants bound if communicate to pre-dating will, if after than only those who received communication will be bound - if knew nothing of trust obligation will take beneficailly
niche areas
can a legatee be a beneficiary under secret trust
Pughs will
void for uncertainty - left to dispose of in accordacne wtih letters and solicitors discretion
where legatee attests the will
Armstrong
upheld where legatee attested the will - in half secret trust
Underhill and Hayton believe should fail
beneficiary predeceases testator
succession act 1965 - can't benefit
Gardiner
receive trust as soon as will made so estate still gets - this decision criticised by underhill and hayton
true beneficiary attests the will
Re Young
testator left to wife, told to give some to chauffeur who witnessed will, allowed purpose is to sidestep legislative requirements
O'Brien v Condon
allowed as taking something from trust not from person
ultimate beneficiary known as trust legatee or secret beneficiary
secret trusts - england - communicated prior to death