James Brown and Mark Pawlowski consider whether a secret trustee is under an obligation not to disclose the terms of a secret trust
A fully secret trust is created where a testator (A) leaves property by will to B on the face of the will for his own benefit, but during the testator's lifetime he has informed B that the property is not for him but for C and B promises to carry out the testator's instructions.
In these circumstances, equity will enforce the trust in order to prevent a notional fraud on the part of B (the secret trustee) in keeping the property for himself contrary to the wishes of the testator and the expectations of C, (the secret beneficiary): McCormick v Grogan (1869) LR 4 HL 82. The trust enables the testator to bypass the formality requirements contained in the Wills Act 1837.
Now let’s consider the following scena...