Secret Trust Research Paper

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Nature of the secret trust Secret trusts are something of a historical anachronism. Secret trust can’t arise inter vivos. Secret trusts are a class of trust defined as an arrangement between a testator and a trustee, made to come into force after death that aims to benefit a person without having been written in a formal will. The secret trust developed as a response to the Wills Act 1837, which was the precursor of the Succession Act 1965, and its precursor, the Statute of Frauds 1695. These Acts imposed certain formal requirements for the creation of a valid will. The property is given to the trustee in the will, and he would then be expected to pass it on to the real beneficiary. This will be valid the person seeking to implement the trust…show more content…
The section 9 is a sensible policy to stay away from fraud and uncertainty in connection with testamentary dispositions. The basis on which the courts enforce secret and half secret trusts has been changed over the years. In 1929 in Blackwell v Blackwell Lord Buck master case observed that the doctrine of secret trusts has over 200 years been the subject of controversy after the statute of Fraud 1677 which imposed formality requirements on oral wills and also on declaration of trust of land. The equity will not allow a statute to be used as an instrument of fraud at the same time accordance with section 9 the secret trustee take as trustee and perform the trust, despite the trust not being declared. McCormick v Grogan 1869 is the most important case this case established fraud theory, fraud theory means Fraud theory clearly states that the basis of their enforcement is fraud. The justification provided was in order to avoid personal fraud. This means that a deliberate intention to deceive must be shown According to this case if any trustee takes any benefit from the secret trust that is the criminal character of fraud. Secret trustee can’t enjoy the personal benefit. Based on these Drakeford V Wilks 1747 and Norris V Frazer cases 1873 , where the secret trust was honest it can’t explain the enforcement of half secret trust or fully secret trust cases. The orthodox fraud theory can’t explain why the secret trust is enforced, rather than a resulting trust being imposed. The dehors the will theory is the most generally accepted justification for the policy. This theory is based on the idea that wills act 1837 is irrelevant to the enforcement of secret trusts. However, there is a argument of opinion regarding how and why a secret trust should face outside the Wills Act 1837.

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