Secret trusts and half secret trusts
The enforcement of both fully secret trust and half secret trust can be explained using either the ‘fraud theory’ or the ‘dehors the will’ theory. But whichever theoretical explanation is chosen the issue is largely academic, for in no practical sense does it ever matter which basis is used.
Discuss.
Secret Trust raises whenever the testator intends to create a trust, the terms of which are not expresses in the will itself. The will is used as an instrument to vest the legal interest of the trust property in the done or the trustee depending on the case at hand, who earlier agreed to carry out the wishes of the testator.
The imposition of Secret Trust prima facie goes against the policy of the Wills Act 1837. Under the Act, as long as the will is in writing and attested by two witnesses (i.e complying with s.9 of the Wills Act 1837), the policy is that whatever is stated on the face of the will is to be exhaustive. By making whatever is stated in a valid will final, the policy is meant to minimize fraud, uncertainty and doubt. Whatever is contained therein should once and for all ascertain to testator’s intention.
Therefore, given that the imposition of secret trust, the terms of which are not disclosed in the will represent a departure from this sound policy, there must exist convincing reasons as to why the court allows testators to escape from the formalities as required under the Wills Act 1837. As stated in the question, there are two main theories explaining the court’s imposition of Secret Trusts.
It will be submitted that the two theories operate somewhat differently depending on whether it is a Full Secret Trust or a Half Secret Trust. But neither theory could single-handedly explain the secret trusts at all. In the end, it had to be admitted that the Secret Trusts doctrines have been developed in an ad-hoc, piecemeal manner without one single, coherent theoretical foundation. With that in mind, the statement that in practice it does not matter which
Discuss.
Secret Trust raises whenever the testator intends to create a trust, the terms of which are not expresses in the will itself. The will is used as an instrument to vest the legal interest of the trust property in the done or the trustee depending on the case at hand, who earlier agreed to carry out the wishes of the testator.
The imposition of Secret Trust prima facie goes against the policy of the Wills Act 1837. Under the Act, as long as the will is in writing and attested by two witnesses (i.e complying with s.9 of the Wills Act 1837), the policy is that whatever is stated on the face of the will is to be exhaustive. By making whatever is stated in a valid will final, the policy is meant to minimize fraud, uncertainty and doubt. Whatever is contained therein should once and for all ascertain to testator’s intention.
Therefore, given that the imposition of secret trust, the terms of which are not disclosed in the will represent a departure from this sound policy, there must exist convincing reasons as to why the court allows testators to escape from the formalities as required under the Wills Act 1837. As stated in the question, there are two main theories explaining the court’s imposition of Secret Trusts.
It will be submitted that the two theories operate somewhat differently depending on whether it is a Full Secret Trust or a Half Secret Trust. But neither theory could single-handedly explain the secret trusts at all. In the end, it had to be admitted that the Secret Trusts doctrines have been developed in an ad-hoc, piecemeal manner without one single, coherent theoretical foundation. With that in mind, the statement that in practice it does not matter which