Secret Trusts - Fully Secret Trusts

10 important questions on Secret Trusts - Fully Secret Trusts

To Create A Suspensory Trust Obligation

The court demands evidence that the testator requires the beneficiary to keep the money separate from her own money.

Wallgrave v Tebbs (1855)

The testator must have communicated the trust, its terms, and the identity of the trust property and the beneficiaries to the legatee before the testator's death.

McCormick v Grogan

Acceptance either expressly or the legatee behaves in such a way that shows he accepts the obligation.
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Moss v Cooper

Silence may constitute acceptance if the silence may lead the testator to believe the trustee accepts.

Tee v Ferri (1856)

Where testamentary gifts are made to two or more people as tenants in common and secret trusts are communicated to some of them, only those people are bound by the trusts and the others take beneficially.

Moss v Cooper (1861)

If the communication occurred after execution, it is only those accepted the trusts who will be bound.

Reason for Such Distinction: Re Stead

Where the communication occurred before the will was executed, it was made on the faith of the promise that all parties would be bound by the trust and it would be unconscionable for any party to break that undertaking.

However, if the communication occurred after the will was executed, only the promisor will be bound by his undertaking, because the gift will not have been tainted with fraud in procuring the execution of the will.

Proving A Fully ST

The person seeking to establish the secret trust bears the burden of proving that the trust has been created.

Moss v Cooper

Parol evidence is not admissible to contradict the written terms of a will.

Ottaway v Norman

Clear evidence was required to conclude that the testator had intended something different from what appeared on the face of the will.

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