Secret Trust Analysis

Secret trust can be identified as a special type of trust because it allows a valid creation of a trust even though the required will formalities are not followed. It is for this reason that many academics consider secret trust as an exception. Section 9 of the Wills Act 1837 states that: No will shall be valid unless—
(a) It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) It appears that the testator intended by his signature to give effect to the will; and
(c) The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) Each witness either—
(i) Attests and signs the will; or
(ii) Acknowledges his signature,

They are ‘fully secret trust’ and half secret trust. The understanding of the difference of these two types is vital for a better understanding. In a fully secret trust the terms of the trust and the intended secret beneficiary‘s names or any indication as to the existence of the secret trust are not mentioned in the will. Therefore on the face of the will it will look like the testator has given an outright gift to the intended trustee. Accordingly a fully secret trust arises when the trustee appears to take an absolute gift under A’s (testator) will but, the trustee has informally agreed with A to hold the subject matter to B (beneficiary). In a half secret trust even though the terms of the trust and the intended secret beneficiary’s name are not mentioned in the will, but there will be an indication as to the existence of a secret trust. For example ‘I leave the green house to X on trust for the purpose I have communicated to him’. In a half secret trust therefore unlike the full secret trust, trustee cannot deny the

They are revocable at any time before death of testator while trusts are irrevocable once it is created unless the testator reserves the right to do so. If it is said that secret trusts are dehors the will, they should be irrevocable as that of normal trusts. However, common laws established that they are not. Revocation of secret trust can be done in two different ways. Settlor could revoke the will so that there could be no vesting of property upon potential secret trustee or settlor could revoke the secret trust without changing anything in the will. Mainly the Justification for revocability of secret trust fails because of the reason that secret trust is not constituted until death of settlor where the vesting of property into hands of secret trustee happens via the will. Also till the death of the testator he has declared a future property as the subject matter of the trust and there can be no trust for future property as a result such declarations are in valid.
Further disadvantages are that oral evidence are un reliable, the theory makes a false dichotomy between the trusts and wills and result with an unduly narrow interpretation as to what a will is. Moreover, the theory does not elaborate as to why acceptance of trust is