Probate actions—secret trusts
Probate actions—secret trusts

The following Wills & Probate practice note provides comprehensive and up to date legal information covering:

  • Probate actions—secret trusts
  • Secret trusts
  • Definition
  • The fundamentals
  • Enforcement

Secret trusts

The enforcement of secret trusts has it roots in equitable doctrines. Here, though, it is not the Will itself that may be the subject of a claim but a particular disposition.

Definition

There are two forms of secret trust, namely:

  1. the fully secret trust, where the named beneficiary has an apparent absolute gift but that in fact, they have agreed with the testator to hold on certain trusts

  2. the half- or semi-secret trust, where the beneficiary is a mere trustee but the terms of the trust are not disclosed or fully disclosed in the Will

To these should be added the distinguishable scenario that probably fits between the two where the testator requests the beneficiary to deal with certain property in a manner already communicated or to be communicated to them but without imposing a trust or legal obligation. In such a case the beneficiary will take absolutely.

The fundamentals

The principal elements of a secret trust are:

  1. intention

  2. communication

  3. acquiescence

Silence by the legatee of a secret trust is acquiescence but the legatee must be asked and agree to hold the property on trust before the testator dies.

If a fully secret trust fails, the apparent beneficiary inherits absolutely. If a half-secret trust fails, the property, in the absence of a gift over, passes to residue or on intestacy.

Like all trusts, their creation (the testator's intention) must satisfy

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