A Problem with Categorizing the Secret trust and ascertaining its Jurisprudential Basis

The will itself will make no mention of the secret beneficiary and o9n the face of the will it appears that the money has been left to the named person for them to dispose of the funds as they see fit. Anyone reading the will would be likely to assume that the money has been bequeathed for the benefit of the named individual. Only the named person and the testator will know of the identity of the secret beneficiary and the agreement for the money to be held for the secret beneficiary will not be committed to writing anywhere. With half secret trusts, the trustee will appear in the will as holding the money on trust but the names of the beneficiary will be withheld.Three elements have to be present for the creation of a secret trust to be proven. The courts have to be satisfied that it was the intention of the testator to create such a trust4. This requires proof that it was the intention of the testator to subject the primary donee to an obligation in favor of the secondary donee5. It was suggested in Re Goodchild [1997]6 that the ‘principles applicable to cases of a fully secret trust do, in substance, require the proof of a contract. As there is generally no formal contract between the parties performance of the secret trust can be dependent on the integrity of the trustee7. There is a danger attached to secret trusts in that the person appointed as trustee can ignore the trust and use the money for their own benefit without anyone realizing that the money should have been given to another.The second requirement for a secret trust is that the intention to create such a trust is communicated to the trustee. Within that communication, the trustee must be informed of the facts surrounding the trust and the terms of the trust. The testator has to communicate the identity of the secret beneficiary to the trustee so that they can ensure that the money gets to the intended beneficiary8. The testator must also make it cover the extent of the trust9. All communication concerning the trust must be communicated to the trustee before the death of the testator10.

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