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An issue in English law, which has been much debated in the past, and continues to form a topic of concern for many academic lawyers, is the role and operation of equity in English Law. A core principle of the law has for some time been the certainty in the application of statutes enacted by the sovereign parliament, this principle has sometimes come in conflict with the conscience based equitable remedies handed out by the courts in order to achieve justice between litigants. A question, which usually arises in the interaction between law and equity, concerns the extent to which the law must give way to equity. Specifically, this writing concerns secret trusts, which operate in contravention of the Wills Act 1837 (‘the Act). Are the arguments for secret trusts sufficiently persuasive to warrant and justify their apparent contradiction with the provisions of the Act?
A secret trust is an arrangement between the testator and a legatee, whereby the testator purports to make a gift in his will to that legatee, but on the understanding that the legatee would apply the gift property for a purpose, or for the benefit of a person, made known to him, but not identified in the will. It is always intended that the person who receives the gift does not take it absolutely, but will hold and apply it on trust for a third party. In a fully secret trust neither the existence nor the terms of the trust are disclosed in the will, therefore there is no indication of a trust in the Will. In a half secret trust there is an indication of the existence of the trust in the will, however the terms of the trust are not disclosed.
It is said that the main feature of the secret trust is that it operates ‘dehors the will’, that is, it operates outside the provisions of the Act. This becomes apparent when the formalities required by Section 9 of the Act, in creating a valid will, is applied. Section 9(a) provides that no will shall be valid unless in writing and signed by the testator, whilst section 9(d) states that the will must be attested. As a result, under statutory law a person cannot be entitled to property under a will unless he or she was identified in it. Furthermore, whilst under the strict application of the Act a person named in a valid will is entitled to the property- he obtains legal ownership, the application of a secret trust will contradict this because the legal owner would be forced to hold the property for the intended beneficiary and will prevent him from treating the property as his absolutely.
The equitable courts have, however, provided several justifications in their application of the secret trust. In McCormick v Grogan Lord Westbury opined that ‘even an act of Parliament hall not be used as an instrument of fraud…’ Therefore, a persuasive argument for allowing secret trusts is that it prevents fraudulent reliance on the strict application of the common law. For instance, it will prevent a person who before the testator’s death agreed with the terms of the trust, from fraudulently going back on his promise after the testator’s death and keeping the property under the will for himself. Furthermore, the Courts have used a more general justification of preventing the trustee from acting in an unconscionable way by asserting beneficial ownership over the trust property.
A problem, which many academics have identified, is that of evidence. In a fully secret trust it may be difficult to prove the testators intention to create a trust after his death, especially as there is no indication of this intention in the will. Often oral evidence will have to be adduced in order to ascertain his intentions, this, many argue, is an inadequate basis for circumventing the provisions of the Will Act. However, the Courts have met this criticism, by stating that the parole evidence rule provides a safeguard. Under this rule oral evidence cannot be admitted to contradict written evidence, in the form of a will. Therefore, as was the case in Re Keen the oral evidence of a secret trust may not be enforced if it contradicts provisions in the will.
Another persuasive argument for the application of secret trusts is the level of proof required. In Re Snowden the court held that where the secret trust is being imposed in order to avoid a fraud, the standard of proof would be ‘very high’. Lord Westbury, in McCormick v Grogan, stated that ‘…it is incumbent on the court to see that a fraud, malus animus, is proved by the clearest and most undisputable evidence.’ This shows that the courts will only impose secret trusts where the intention of the testator is extremely evident.
Furthermore, in response to the argument that secret trust are too informal and lack any sense of certainty- a quality which is highly esteemed in English Law, the courts devised certain requirement for a valid secret trust. In Ottaway v Norman and Blackwell v Blackwell, with regards to fully secret and half secret trusts respectively, it was held that in order to make a valid secret trust there must firstly be an intention to subject the trustee to an obligation in favour of the secret beneficiary, a communication by the testator to the trustee, of this intention, and acceptance by the trustee of that obligation, either expressly or impliedly by his silence. Thus, it is said, there are formalities even in the clandestine arrangements of a secret trust.
It is apparent therefore, that the courts have made several attempts to justify the operation of secret trusts contrary to the Wills Act. The interest of justice and good conscience is often seen to be the most persuasive justification of secret trusts and indeed all equitable measures, to soften the harsh results that the strict application of statutory law and common law sometimes produce.
Hudson A. Equity & Trusts. 3rd Edition. 2003. Cavendish Publishing Limited.
Martin J. E. Hanbury and Martin- Modern Equity. 16th Edition. 2002, Sweet & Maxwell.
Ramjohn M. Cases & Materials on Trusts. 3rd Edition. 2004. Cavendish Publishing Limited.
 (1869) LR 4HL 82.
  Ch 236
  2 All ER 172
 (1869) LR 4 HL 82
  2 WLR 50
  AC 318
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