Secret trusts often fail to comply with the requirements of the Wills Act, however it is argued to an extent that this should be upheld to prevent fraud. Firstly to even prove the existence of a secret trust, any gift must comply with S.9 of the Wills Act , if it does not then ultimately the trust fails. Under these formalities, the will must have been signed by the testator and have at least two witnesses present . However the courts justification for enforcing secret trusts is to foil any fraudulent claims, under this theory lies the maxim that equity will not permit a statute to be used as an instrument of fraud.’ As conferred in McCormick v Grogen this also means that a secret trustee can’t defraud the settlor and keep the property intended
