surreptitious self-confidences arise where a testate explains to X that they desire space to be held on depone for Y and because leaves the berth to X in their leave alone. It is also practical that a unfathomable affirm arises where in reliance on a promise to implement the affirm by X, no exit is made (Strickland v Aldridge 1804 9 Ves 516 ref1). The onus of proving a hole-and-corner(a) dedicate is on the person claiming that it exists, on the proportion of probabilities - the ordinary genteel standard of proof (Re Snowden 1979 3 solely ER 172 REF2). thither atomic rate 18 three elements necessary for a cloak-and-dagger take (Ottaway v Norman (1971) 3 all ER 1325 REF3). Intention The testator moldiness(prenominal) intend that the proportion be used in conformism with a direction. This must be intended as a binding obligation on the heavy guardian, non hardly an unlaced discretion. (Re Snowden (REF2), McCormick REF44, Margulies v Margulies and o thers [2000] all(a) ER (D) 344 REF4 on precatory words). dialogue The testate must communicate their intention to the intended legal guardian, on with the ground of the trust. An ex adeninele whitethorn be a loaded windbag to be opened on the testators devastation, provided that the intended trustee knows the seat is to be dealt with in accordance with the contents of the gasbag (Obiter in Re Boyes (1884) 26 ChD 531 REF5, and confirmed in Re Keen 1937 Ch 236 REF6). A mere request to hold as instructed by either papers left with the allow for would non amount to letable communication. Oral communication is military forceive as yet in the miscue of a one- fractional(prenominal) cryptical trust, must be consistent with the term of the result (Re Keen REF6). If except the intended trustees do non find out fairly the intentions until after the testators death, on that point will be no recondite trust (Wallgrave v Tebbs 1855 2 K & antiophthalmic calculat e; J 313 REF7). Agreement There must be a! ccordance or acquiescence, including placid acquiescence (Moss v Cooper 1861 1 lavatory & antiophthalmic factor; H 352 REF8) of the intended trustee, which may be acquit or implied (Wallgrave v Tebbs 1855 REF7). If there is no march of the trust in the Will, the trust is richly abstruse. If there is evidence in the Will exclusively no indication of the term or the final beneficiary, it is half cabalistic. Fully confidential trusts behave communication and ad excerpt before the death of the testator - half cloak-and-dagger trusts require communication (including the terms) and acceptance before the execution of the Will. This avoids a Testator merely naming a trustee and deciding terms later with unwitnessed testamentary appetites, and then choosing to sack the requirements of the Wills spell 1837 (REF9) entirely (Blackwell v Blackwell 1929 REF10, ex adeninele in clause 5 of the Will in Re Keen 1937 REF6). It is provided difficult to substantiate the di fference between this and a fully mystery trust, where the testator hind end choose his enigmatical beneficiary at any time up to his death - certainly also ignoring the nourishment of the Wills hazard. movement of invests - plebeian Rules Usual rules for testamentary formality atomic number 18 effect at s9 of the Wills actuate (as amended by the tribunal of judge acquit 1982 s.17) and for trusts at s.53(1) justice of Property turn 1925. (12) effect of ar gageum Trusts There is however a conflict as secret trusts and half secret trusts do non incorporate to be made in opus/by deed. The logical defense of this was based on the honest maxim - right will not allow a code to be used as an instrument of fraud. Where the Testator crystallizely did not intend to make an outright leave to X and without gateway of oral or other evidence such a gift may be fraudulently obtained (thus using the enactment to exclude clear evidence of the Testators true int ention), it may be submitted subject to s.7 Statute o! f Frauds 1677 (now s.53(1) LPA) - Critchley p.21, interlingual rendition 6 (REF13). Do secret trusts operate outside the Will? The more recent befall is that there is no such conflict between s.9 Wills Act and secret/half secret trusts because they operate outside the will (dehors - unit 24 p.41 REF14) and change nothing that is written in it (Re Snowden 1979 2 All ER 172 REF2). This is difficult to grasp as with a fully secret trust, the Will states that the gift to X is outright and only the terms of the trust alter this. Pearce and Stevens maneuver that the trust is uncompletely constituted until the death of the testator. The agreement and acceptance to hold the property on trust take place inter vivos scarcely the trust comes into effect when on death, the Will transfers legal business to the trustee (Pearce & adenosine monophosphate; Stevens, exercise 14, REF15). Whilst this is a strong argument, the formalness requiring half secret trusts to be communicated and accepted prior to the execution of the Will so as not to ignore the Wills Act, seems incompatible with the gather in that secret trusts operate outside the pabulum of the Wills Act entirely. be secret trusts necessary to veto fraud? The adaptation of secret trusts avoiding the requirements of the Wills Act is said to be made to prevent fraud. A trustee agrees to hold property on trust and a gift is made to him on that basis (Re Boyes, REF5). To maintain absence of the Wills Act formality as a self-renunciation and thus claim the gift is outright, would be to use statute as an instrument of fraud, and would be against the equitable maxim. Maudsley disagrees, pointing out that with a half secret trust, fraud is rargonly an issue as the trust is apparent from the Will and there is no guess that the legatee can keep the Property (although the intended beneficiary may not get it where terms are not clear) - (Maudsley, pg. 116 REF 16). Where the terms of the trust have not be en communicated properly but the trust is proved to e! xist (Re Boyes, REF5), the legatee will hold the property for the gain ground of the residuary beneficiaries or those en claimd under intestacy rules. Maudsley consequently concludes there is no possible excuse for the intervention of faithfulness to rescue a disposition from the impact of the statute. atomic number 18 secret trusts consistent with policy and other honor? conundrum trusts appear to create a gap in the concentration of the law with regard to testamentary dispositions and are because arguably against policy. Where arguments arise that the formalities of the Wills Act operates against the intended beneficiaries, Maudsley argues that umteen statutes do this and equity does not interfere in every case (Maudsley, pg. 116 REF 16). Moffat follows this argument, querying that if secret trusts are express trusts as has been implied, are such secret trusts containing land required to be in writing under LPA1925 s.53(1)(b) (Moffat p.119-120, REF17)? Sheridan (1951) (REF18) suggests that half secret trusts are express (and so LPA1925 s.53(1)(b) applies) but fully secret trusts are constructive, avoiding the provisions of s.53(1)(b). This brings us back to the pilot light justification - should half secret trusts, if express, be enforced even if they dont comply with s.53 on the original case of prevention of fraud? Hodges argues in similitude to formalities that, if the testator is content in complying with the formalties of the Wills Act to transfer the legal title to the secret trustee (in a half secret trust), wherefore should they be allowed to (or want to) avoid them in relation to the equitable interest? (Hodge, D. R. - rendering 10 REF19) There seems to be puny logic for avoidance of formality for half secret trusts. Are secret trusts testamentary in character? In examining the nature of the secret trust, Critchley points out that the arrangement has no effect and confers no interest before the testators death - therefore, the tr ust is surely testamentary rather than inter vivos, a! nd ought to comply with s.9 Wills Act 1837 (and indeed, s.15). Hodges agrees the disposition of property under a secret trust is testamentary in nature, noting that the trust takes effect only upon the vesting under the Will of the trust property and that it shares the characteristics of a gift under a Will as it can be revoked or altered at the desire of the Settlor (Hodges, interpret 10 REF19). brain-teaser trusts are arguably reusable as a will is public document and a testator may wish to keep a gift secret from family perhaps to avoid upset. They also offer flexibleness - property can be left to trusted coadjutor or solicitor whilst retaining ability to decide on crowning(prenominal) distribution. However, there seems to be a large division in public opinion between the rules for secret trusts and half secret trusts. It is helpful to recall the purpose of formalities laid shoot down in the Wills Act and similar formalities such as contained in the shore up Registrati on Act, which are there to avoid the possibility of doubt, irresolution and fraud (Hodges p.39 Reading 10 REF19). It seems clear there is no justification for this loophole in the law - if secret and half secret trusts are accepted, why not accept improperly executed wills and incomplete land transfers? Adopting a purposive approach, modern legislation is in place to protect some(prenominal) testators and beneficiaries from fraud - it seems illogical, unjustified and irreconcilable that the secret trusts should be allowed to course the provisions of such legislation. 1297 words References: 1) Strickland v Aldridge 1804 9 Ves 516 cited in Re Boyes (1884) 26 Ch D 531, Reading 7 - option intelligence 4 units 23 - 32 - W301: equity: aberration & angstrom unit; trusteeship - rights & axerophthol; responsibilities, The control rally University, Milton Keynes 2) Re Snowden 1979 3 All ER 172 in Moffat, G. Trusts rightfulness - textual look and Materials (3rd Edition, 20 02) pg.129, Butterworths/LexisNexis. 3) Ottaway v Nor! man (1971) 3 All ER 1325 quoted in Moffat, G. Trusts righteousness - text edition and Materials (3rd Edition, 2002) pg.114, Butterworths/LexisNexis. 4) Margulies v Margulies and others [2000] All ER (D) 344 found online using ixquick. 5) Re Boyes (1884) 26 ChD 531 - Reading 7 - Resource platter 4 building blocks 23 - 32 - W301: fair play: monomania & angstromere; trust territory - rights & angstrom unit; responsibilities, The slack University, Milton Keynes 6) Re Keen 1937 Ch 236 Moffat, G. Trusts law of nature force - textual matter and Materials (3rd Edition, 2002) pg.114, Butterworths/LexisNexis. 7) Wallgrave v Tebbs 1855 2 K & adenine; J 313 in Hayton, D. J. Hayton & deoxyadenosine monophosphate; Marshall explanation and Cases on The practice of law of Trusts and equitable Remedies (11th Edition, 2001) pg.107, Sweet & international type Aere; Maxwell, slap-up of the United Kingdom 8) Moss v Cooper 1861 1 John & H 352) cited in Moffat, G. Trusts law - textu al matter and Materials (3rd Edition, 2002) pg.114, Butterworths/LexisNexis. 9) Wills Act 1837 in Moffat, G. Trusts integrity - Text and Materials (3rd Edition, 2002) pg.113, Butterworths/LexisNexis. 10) Blackwell v Blackwell 1929 AC 318 (HL) in Hayton, D. J. Hayton & Marshall rendering and Cases on The Law of Trusts and candid Remedies (11th Edition, 2001) pg.111, Sweet & Maxwell, capital of the United Kingdom 12) Re Edwards 1948 Ch 440 - cant radiation diagram where I found this case, perhaps found online? 13) Critchley, P.
Instruments of Fraud, testamentary Dispostions and the philosophical system of Secret Trusts (1999) cxv LQR 631 - Reading 6 - Resour! ce reserve 4 Units 23 - 32 - W301: Law: self-command & trust territory - rights & responsibilities, The give way University, Milton Keynes 14) Unit 24 - Secret Trusts and Mutual Wills - A: Secret Trusts, manual of arms 4 Units 23 - 32 - W301: Law: self-command & Trusteeship - rights & responsibilities, The clear(p) University, Milton Keynes 15) Pearce & Stevens, The Law of Trusts and trustworthy Obligations (2nd Edition, Butterworths) pp.324-326 - Reading 14 Resource bear 4 Units 23 - 32 - W301: Law: Ownership & Trusteeship - rights & responsibilities, The hand University, Milton Keynes 16) Maudsley, R. H. Incompletely Constituted Trusts in R Pound (ed) Perspectives of Law (1964) pp254-256, in Moffat, G. Trusts Law - Text and Materials (3rd Edition, 2002) pg.116, Butterworths/LexisNexis. 17) Moffat, G. Trusts Law - Text and Materials (3rd Edition, 2002) Butterworths/LexisNexis. 18) Sheridan (1951) as for 12, - cant figure where I found this case, perhaps found online? 19) Hodge, D. R. Secret Trusts: The Fraud Theory Revisited (1980) Conv 341- Reading 10 Resource declare 4 Units 23 - 32 - W301: Law: Ownership & Trusteeship - rights & responsibilities, The Open University, Milton Keynes 20) Re Young 1951 1 Ch 344 - Reading 9 Resource Book 4 (pg.33) Units 23 - 32 - W301: Law: Ownership & Trusteeship - rights & responsibilities, The Open University, Milton Keynes 21) s.15 Wills Act 1837 Reading 9 Resource Book 4 (pg.33) Units 23 - 32 - W301: Law: Ownership & Trusteeship - rights & responsibilities, The Open University, Milton Keynes 22) s.33(1)(i) Trustee Act 1925 in Moffat, G. Trusts Law - Text and Materials (3rd Edition, 2002) pg.213, Butterworths/LexisNexis. 23) Re Walker (1939) Ch. 974 in Hayton, D. J. Hayton & Marshall rendering and Cases on The Law of Trusts and ingenuous Remedies (11th Edition, 2001) saving of parity 4.92 - 4.112, Sweet & Maxwell, capital of the United Kingdom 24) Re S tonehams law of closure 1953 Ch 59 (p.85) Unit 25 ! meet of Trusts: Control of Trustees - B: Appointment, Retirement and removal of Trustees, Manual 4 Units 23 - 32 - W301: Law: Ownership & Trusteeship - rights & responsibilities, The Open University, Milton Keynes 25) Re beloved Wilkes Charity (1851) 3 Mac & G440 in Hayton, D. J. Hayton & Marshall remark and Cases on The Law of Trusts and just Remedies (11th Edition, 2001) mirror symmetry 9-319, Sweet & Maxwell, London 26) Hayton, D. J. Hayton & Marshall explanation and Cases on The Law of Trusts and Equitable Remedies (11th Edition, 2001) mirror symmetry 9-319 - 9-320, Sweet & Maxwell, London 27) s.19 TLATA 1996 in Hayton, D. J. Hayton & Marshall Commentary and Cases on The Law of Trusts and Equitable Remedies (11th Edition, 2001) parity bit 8-17, Sweet & Maxwell, London 28) Saunders v Vautier (1841) 4 Beav 115 in Hayton, D. J. Hayton & Marshall Commentary and Cases on The Law of Trusts and Equitable Remedies (11th Edition, 2001) para 9-154, Sweet & Maxwell, London 29) Unit 23 Discretionary and cautionary Trusts - B: Protective Trusts, Manual 4 Units 23 - 32 - W301: Law: Ownership & Trusteeship - rights & responsibilities, The Open University, Milton Keynes. 30) s.33 Trustee Act 1925 in Moffat, G. Trusts Law - Text and Materials (3rd Edition, 2002) pg.213, Butterworths/LexisNexis. 31) Re Smith (1928) Ch 915, Hayton, D. J. Hayton & Marshall Commentary and Cases on The Law of Trusts and Equitable Remedies (11th Edition, 2001) para 4-98, Sweet & Maxwell, London 31) s.310 Insolvency Act 1986 33) Klug v Klug (1918) 2 Ch 67 cited in Unit 25 Control of Trusts: Control of Trustees - D: Controlling the Trustees, Manual 4 Units 23 - 32 - W301: Law: Ownership & Trusteeship - rights & responsibilities, The Open University, Milton Keynes 34) Scott v National Trust (1998) 2 All ER 1936 discussed in Moffat, G. Trusts Law - Text and Materials (3rd Edition, 2002) pg.427 and Chapter 13, Butterworths/L exisNexis. 35) s.8(1)(b) Trustee Act 2000 cited in Ha! yton, D. J. Hayton & Marshall Commentary and Cases on The Law of Trusts and Equitable Remedies (11th Edition, 2001) para 9-124, Sweet & Maxwell, London 36) Khoo Tek Keong v. Chng Joo Tuan Neoh (1934) AC 529 cited in Hayton, D. J. Hayton & Marshall Commentary and Cases on The Law of Trusts and Equitable Remedies (11th Edition, 2001) para 9-125, Sweet & Maxwell, London . 37) Re Manistys answer (1917) Ch 17 used in Hayton, D. J. Hayton & Marshall Commentary and Cases on The Law of Trusts and Equitable Remedies (11th Edition, 2001) para 9-208 onwards, Sweet & Maxwell, London 39) Vestey v IRC (No 2) [1979] Ch 198 at 206, [1979] 2 All ER 225 at 235, DC, per Walton J; affd [1980] AC 1148, [1979] 3 All ER 976, HL - butterworths/halsburys online. 40) s.1(1)(a) regeneration of Trusts Act 1958 41) Re Tinkers Settlement (1960) 1 WLR 1011 cited in Moffat, G. Trusts Law - Text and Materials (3rd Edition, 2002) pg.267, Butterworths/LexisNexis. 42) Knocker v Youle 1986 2 A ll ER 914 cited in Moffat, G. Trusts Law - Text and Materials (3rd Edition, 2002) pg.263, Butterworths/LexisNexis. 43) Unit 25 Control of trusts: Control of Trustees - A: Variation of sound Interests, Manual 4 Units 23 - 32 - W301: Law: Ownership & Trusteeship - rights & responsibilities, The Open University, Milton Keynes. 44) McCormick v Grogan (1869) LR 4 HL 82 quoted in Moffat, G. Trusts Law - Text and Materials (3rd Edition, 2002) pg.113, Butterworths/LexisNexis. If you want to get a full essay, order it on our website:
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