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13 Cards in this Set

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  • Back
Fully Secret Trust
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

If gift as Joint Tenants in Fully Secret Trust

Re Stead 1900 Eng

Acceptance by one before the will is binding on all. After the will binding on those who accepted
If gift as Tenants in Common in Fully Secret Trust
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

Inducement theory estb by Perrins 1972 LQR
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

Onus of Proof Fully Secret
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

Half Secret Trusts
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

Johnson vBall 1851 ER
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
Blackwellv Blackwell [1929]AC 318

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.
ReKeen [1937] Ch 236
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

Riordan v Banon(1876) IR 10 Eq 469
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

Prendiville v Prendiville [1995] 2 ILRM 578
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.

John Mee 'Half-secrettrusts in England and Ireland’
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.
Coughlan 'Communicationand acceptance of half-secret trusts – a direct Irish authority?’
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.