10 - Secret trusts and mutual wills

Source - Unlocking Trusts

A summary of this chapter is given below:

1) Introduction - (a) 2 types: Fully secret trust & Half secret trust (b) Trust comes into play outside the Wills Act 1837 (see the case of Young) (c) Basis of enforcement - Equity will not allow statute to be used a fraud

2) Requirement of Fully Secret Trust - (a) Communication to and acceptance by the legatee (trustee) during the testator's lifetime, whether before after the will (b) See what happens if there is no agreement (The case of Wallgrave) and is the terms of trust are not communicated (the case of Boyes)

3) Requirement of Half Secret Trust - (a)There should be mention of the trust in the will itself(b)Contrast this kind of trust with the case of Boyes (c) Communication should before the will not after (d) Trustee will never take the property beneficially (contract this with Wallgrave case)

4) Unresolved issues with secret trusts - (a) Standard of proof (b) Death of secret beneficiary (c) Death of secret trustee (d) Classification of secret trust - whether express or constructive

5) Mutual Wills - Similar wills made by 2 or more testators or joint wills on the death of the first to die + agreement intended to bind the survivor of the first to die