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...

Mark Pawlowski
Barrister and professor emeritus
School of Law, University of Greenwich

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