FULL AND HALF SECRET TRUST

1. ‘A trust is the binding of the
conscience of one to the
intention another’ - per
Viscount Sumner in Blackwell
v Blackwell (1929) AC 318
In the light of the above
statement, illustrate the
conditions for validity of
both full and half secret
trusts.

2. • The secret trusts comprise both:
• Full secret trusts
• half-secret trusts
• They are a relic of a bygone era and do not
conform to established trust principles.
Their prior purpose has largely disappeared
Definition with the changing patterns and expectations
of social behaviour. They do however find a
limited place with the testator who is
hesitant and cannot make up his mind.
Some explanation of the similarities and
difference of the two types of secret trust
will lead on to an evaluation of why they
might be justified.

3. • A fully secret trust is where a testator leaves
Full property absolutely to a legatee under his or her
will. There is no evidence of the trust on the face
of the will. The secret trust arises only because
the testator has impressed the property and the
secret donee with the trust. The donee is conscience
bound to give effect to the trust because the
testator has indicated the trust to him or her
trust before death. The donee therefore knows that he
or she does not take the property absolutely under
the will but only as a trustee.
Half • A half-secret trust is where it is clear on the face
of the will that the donee takes the property
on trust. For example to A on such trusts as I
secret have communicated to her. There are no details
of the trust evident in the will – compared to an
express testamentary trust. The deceased must
trust have communicated the terms of the trust to
the trustee/donee by a separate document.

4. The requirements for a half-secret trust to be valid are similar to those for fully secret
trusts, and were laid out in Blackwell v Blackwell, where a testator gave five trustees
pieces of property, instructing them (in the will) to hold on to this property as they had
been asked. Prior to the testator's death, the trustees had all been told what to do with
the property. Lord Sumner said that:
The necessary elements [to create a half-secret trust], on which the question turns, are
1. INTENTION : If the trust is
secret then clearly there must
be some evidence of it
somewhere if it is to be
enforceable. An expression of 2. COMMUNICATION :
3. ACQUIESCENE : The trustee
a mere hope or “precatory” communication of the trust to
must also agree either
words is not sufficient. In the the trustee – otherwise his or
expressly or implicitly – silence
case of Re Snowden [1979} All her conscience will not be
may be sufficient – to hold as
ER 172, the deceased left bound. Thus the legatee must
trustee. It can be
property to her brother in the know before or at the time of
communicated either
hope that he would do with it receiving the property that he
directly, or tacitly.
what he thought she would takes it as a trustee
have wanted. This was held
not to be sufficient to give a
clear indication of intention to
set up a trust.

5. 1st element : Intention to subject the
trustee to an obligation
Thus an intention
In the case of Re Snowden, court held that
to impose a moral
it was only a moral obligation which cannot
obligation on the
be construe as a positive intention to
legatee is not
create a trust. The property thus passed
sufficient to
beneficially under the brother’s will
create a trust

6. 2nd element : Communication of the
intention of the settlor of trustee
* Re Keen
* Communication can take place anytime during
the life of the testator.
* Communication of the terms of the trust may
The terms of the be made by the settlor orally/letter/sealed
secret trust must envelope - containing the terms – before the
be communicated death of testator –instruction not to open the
to the trustee letter until testator’s death.
otherwise there is
no trust * In this case the trustee acknowledged of the
terms and knows the existence of the trust
* A valid trust was created

7. 3rd element : Acquiescene/that the
trustee accepted his obligations
Ottoway v Norman 1972
To prevent fraud Testator left property to
on the part of the
trustee its housekeeper provided she left it
important that the to his son and daughter-in-law
trustee has [Ottoways] after her death – she
accepted office of
trustee otherwise agreed – he died – she took – she
there is no fraud in died – left not to the Ottoways
the gift of the
testator but to Norman – held the
Ottoways took.

8. COMMUNICATION In the case of a fully
secret trust it is
sufficient if
communication takes
place sometime
before the property
vests in the trustees.
TIME OF
COMMUNICATION
FULL SECRET TRUST /
HALF SECRET TRUST
ACQUIESCENE In the case of a half-secret
trust the communication
must occur before or at the
same time as the will is
made. It was indicated obiter
in Blackwell that a testator
cannot reserve to himself to
make future unwittnessed
INTENTION dispositions of his property.

9. Differences between full and half:
• Communication and acceptance in a full can happen at any
time before death; in half, before or at time of execution of
the will
• Full, it doesn’t matter if the will contradicts the trust; half, no
contradiction
• Under s15 Wills Act 1837, a beneficiary or their spouse who
witnesses a will loses the interest. In full and half, trustees
appears to be beneficiaries - but it doesn’t matter if he
witnesses the will
• If the trustee dies first – the full will probably fail Re Maddock
1902
• In a half, the trust is set up by the will – equity won’t allow it
to fail for want of a trustee

10. A secret or half secret trust enables
WHY ? the settlor to keep secret certain
beneficiaries.
Whereas the will is a public
document, the trust is not.
Such secret beneficiaries may be illegitimate children who are
ineligible to inherit under the rules of inheritance, a mistress or
lover or second wife whom the settlor did not want his family to
find out about, or a recipient of his charity who he did not wish to
advertise.
A secret trust might also be used to
avoid restrictions on the disposition of
certain property to certain people.