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13 Cards in this Set
- Front
- Back
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Fully Secret Trust
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gift to named person without stating expressly that have to hold gift on trust
During lifetime (before/after will) must tell person that they are to hold on trust. Can agree expressly/silently then bound by trust |
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If gift as Joint Tenants in Fully Secret Trust
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Re Stead 1900 Eng Acceptance by one before the will is binding on all. After the will binding on those who accepted |
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If gift as Tenants in Common in Fully Secret Trust
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Re Stead 1900 Eng
Only those who accept are bound by the trust
Geddis v Semple 1903 Ire - Biehler thinks is fairer ‘innocent’tenant in common will take free of the trust only if his gift can be regardedas an independent one i.e. that it was not induced by his co-tenant’sundertaking in relation to the trust |
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Inducement theory estb by Perrins 1972 LQR
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Thinks Stead wrong.
NB q should be: whether the gift to the legatee who was unawareof the testator's intention to create a secret trust was induced by the promiseof the legatee who knew of his intentions Therefore doesn't matter if TinC or JTs |
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Onus of Proof Fully Secret
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Person who wants trust has to prove.
Re Snowden 1979 Eng Use Civil Standard. Obiter if q of fraud higher standard of proof
BancoAmbrosiano v Ansbacher & Co 1987 Ire SC reject that could be a higher burden if q of fraud |
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Half Secret Trusts
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Clear in will that person = trustee but terms and ID of beneficiary not in will.
Trustee has to accept obligation during lifetime of testator Eng knickers in twist abt fraud |
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Johnson vBall 1851 ER
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shows that you must look to the will to find if the communication was permissible. Evidence for half-secret trust = inadmissible if inconsistent with will
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Blackwellv Blackwell [1929]AC 318
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Testator give money on trust to 5 persons. All got instructions. 5th got detailed instructions. Sign codicil. Then 5th wrote memorandum of details. Upheld trust. suggested that there cannot be effective communication after making of will. |
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ReKeen [1937] Ch 236
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Trust failed mainly because of inconsistency betwhat was meant to happen and what actually happened.
“to be held upon trust and to bedisposed of by them among such person, persons or charities as may be notifiedby me to them ... during my lifetime ...” (1) all the content must becommunicated before or at the same time as the will is made; (2) will must contain noreference to a future communication; (3) actual communication mustnot be inconsistent with the express wording of the will. Unsatisfactory ratio Biehler thinks turns on inconsistency. even if subs com = admissiblein principle, it was inadmissible because inconsistent with will |
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Riordan v Banon(1876) IR 10 Eq 469
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First case to give effect to half secret.
Leave £2k without naming in will. Mr White agreed if money left to him would give it. Testator said would leaveletter with instructions just in case Mr White died before he did. Doubt if theletter was written before the will and was then arg that it was trying to avoidWills Act Use of 'shall' = problematic. Evidence of prior communication and acceptancebefore the will was executed. Will poss contemplate sth happenin future. If at or before will communication it is ok. Discrepancywhat had actually happened and what was meant to happen Upheld trust, did not explore shall, explicitly state cannot use trusts to avoid statute |
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Prendiville v Prendiville [1995] 2 ILRM 578
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Wife made statutory declaration that would accept half secret trust but died before resolved everything. Only clear that communication occurred during husb life. Will suggested prior communication.
Barron J rejected that Re Keen stipulated prior communication but didn't specify what happened in this case. |
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John Mee 'Half-secrettrusts in England and Ireland’
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Eng shouldn't be so worried about inadvertent inconsistencies. Hopes that the SC in Ireland will be the guiding light for Eng courts andhold that an inconsistency with the terms of the will, will not automaticallydefeat a half-secret trust.
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Coughlan 'Communicationand acceptance of half-secret trusts – a direct Irish authority?’
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finds the judgment in Riordan puzzling because Chatterton VC despite finding a half- secret trust tries not to rely on the subsequent delivery and acceptance of the letter and was happy to base decision on oral communication to.
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