Fully secret trusts

This is where neither the existence nor the terms of the trust are disclosed in the will.

The trust will be enforced only if the following conditions are complied with.

1) The testator must leave property by will to the secret trustee apparently for his own benefit;

2) The testator must tell the secret trustee that he wants him to hold the property on trust for the secret beneficiary: this communication must take place during the testator's lifetime: but whether it is before or after the date of the will is immaterial;

3) The secret trustee must promise to carry out the testator's intention: such promise may be express or implied: silence after hearing the testator's intention will normally be treated as an implied promise (moss v cooper);

4) The testator's decision to make a disposition in favour of the secret trustee or to leave an existing disposition unaltered must be made on the faith of the secret trustee's promise;

5) No trust will arise if the alleged trustee only learns of the alleged trust after the testator's death (wallgrave v tebbs).

Posted Date: 12/13/2012 5:57:41 AM | Location : United States

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