Secret Trust Theory

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hrough out the years people have been searching to find other ways of passing things along without having to write it down in a public document. In the case of Katherine, Duchess of Suffolk v Herenden (1560) it is suggested that when there are entrenched hurdles such as the sex of the person that the testator wishes to leave something for, unconventional actions have to be taken. In this specific case the spouse wanted to leave property for his wife but was legally not able to do so given that in that time it was not possible to leave ownership of anything in a Will to a female, the unconventional procedure being a secret trust. Secret trusts exist in two different forms; fully secret trust ans half secret trusts. A full secret trust might…show more content…
In general terms a secret trust would imply that the trust would instead of being held by e.g. an illegitimate child it would be held by a trustee or a friend. Hence in could be suggested that the secret trust operates outside the scope of the Will. The issues that arise when it comes to secret trust is the legitimacy of it as well as the concept of keeping the beneficiary secret. Here is where the fraud theory comes into play. It becomes an issue because If the person holding the trust for the beneficiary denies doing so and withhold the existence of that specifik trust, he/she can use it for their own purposes and wishes because they will be left in charge of that trust. Due to equity and the strict statutory guidelines a trustee or a testator is prohibited from denying the trust. This is one of the reasons for why the fraud theory comes into play on a theoretical basis of a secret trust as displayed in the case of; McCormick v Grogen (1869) LR where it is suggested that a trustee cannot commit fraud, e.g. keep the property for him/herself, on a testator without committing fraud, it also states that the the if the fraud theory is investigated in a will that has a operating secret trust then whether there is a fraud or not will be held to a higher standard rather than if the secret trust was not concluded and the fraud theory not investigated at first. In a circumstance where the courts decide to investigate the fraud theory as a start and where it later on is proven there is a secret trust in existence, fraud has to be proven to exist beyond reasonable doubt. This is very much stated by Lord Westbury in McCormick. Further on if the case of Re Snowden is providing any inside to how secret trust operates and there relationship with the fraud theory, it suggests that in a case where only the existence of a
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