Secret Trusts Essay On Equity And Trusts University Of Birmingham Essay

3866 words - 16 pages

The doctrines of secret trusts do not accede to the requirements of the Wills Act 1837, yet they succeed in the eyes of the law. Their enforcement is complex to justify; their developments have notoriously stemmed from the customs of judiciary and academics. This article presents arguments for both enforcement and non-enforcement of them as well as addressing the broader theoretical questions. This article also delivers a series of divisive views of secret trusts, taking in consideration whether their justification are reasonable, whether the purpose they serve in current society today is of any relevance as well as whether an exhaustive review of them is needed.
Secret trust are equitable devices that effectuates a testators express intentions to an intended trustee[footnoteRef:1], in order to fulfil an arrangement, arising whenever the testator establishes an intention to create a trust which is not expressed in the will itself. Secret trusts consequently would not have complied with the formalities outlined in s9 of the Wills Act 1837[footnoteRef:2], thus can be seen as controversial as the Will is portrayed as the conventional instrument to vest the legal interest of the trust property to the intended trustee. Moreover, any other method of disposition not complying with s.9 of the Wills Act would be void[footnoteRef:3], yet secret trust clearly contravenes this rule and succeeds. The very existence of secret trust becomes the subject of dispute discussed in this article, contemplating judicial enforcement of secret trusts when plainly they are in defiance of clear statutory provisions. Secret trusts emerge in two forms[footnoteRef:4]; a fully secret trust and half-secret trust, concerning fully secret- trust they do not appear on the will at all and no evidence of its existence can be discovered on the face of the will hence its name. The latter alludes to the actual existence of the secret trust, however omits the terms[footnoteRef:5]. This short article seeks to address an investigation of the controversial elements surrounding the notion of secret trusts and nonetheless examining Emma Challinor` s assertions. [1: John McGhee, Snells Equity 32nd edn, Sweet & Maxwell [2010] ] [2: Wills Act 1837] [3: Ho Siu, ”Keeping secrets: a critical analysis of the justifications for the docrine of secret trusts”] [4: Gary Watt, Cases & Materials on Equity & Trusts 10th edn, Oxford [2016]] [5: Stephen James Alan Swann, ”From Law to Faith: Letting Go of Secret Trusts” [1999]]
Fraud Prevention
Emma Challinor is an individual openly against the concept of secret trust, pinpointing one of her claims, that “fraud is better prevented upon compliance of the s9 Wills Act formalities”, implies a contrast made and that is of secret trusts. This statement can be agreed to a large degree; such can be proved via a closer inspection of the formalities required from each. Adhering to s.9 requirements of the Wills Act would mean that courts...

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