A fully secret trust arises where, on the face of the will, a gift appears to be absolute but, in fact, the testator has agreed: Equity & Trusts Assignment, GC, Ireland

INTRODUCTION:

A fully secret trust arises where, on the face of the will, a gift appears to be absolute but, in fact, the testator has agreed with the recipient that the property will be held on trust. In a half-secret trust, the existence of the trust is disclosed in the will but not its nature.

Therefore, just as equity will sometimes waive the strict formalities that are required in order to create an inter vivos trust of real property, equity will also sometimes be prepared to waive the statutory formalities that are normally required in order for a valid testamentary trust (trust created by will) to take effect.

The insistence of equity that the statutes of wills (which preceded the Succession Act 1965), like the Statute of Frauds, should not be used as instruments of fraud, explains the recognition by the law of what are known as ‘secret trusts’. Since wills are published and any member of the public can inspect them in the Probate Office on payment of a small fee, it was inevitable that a testator in some instances would be concerned to avoid publicity, e.g., where he wished to provide for a lover or a child born outside marriage. Today, a secret trust may be used by a testator to avoid having to specify with precision at the time of making a will how he intends his property to be distributed. Secret trusts may also be created for other purposes. As noted above, there are two types:

1. Fully-Secret Trusts: Arise where a testator makes a gift of property to a named person in his will without expressly stating that the latter is to hold it on trust. He must inform the legatee of the trust during his lifetime (either before or after making the will) and the legatee must expressly or impliedly agree.
   • Example: A secret trust arises where a testator leaves property in a will to A. A takes the property beneficially on the face of the will; however, the deceased had communicated an intention to A during his life that A would hold the property on trust.
2. Half Secret Trusts: Arise where it is clear from the will that the legatee is to hold the property on trust but neither the terms of the trust nor the identity of the beneficiaries are disclosed in the will. Historically, the reason for creating such trusts was to allow a testator make provision for somebody whom he did not wish his family to be aware of, e.g. a mistress.
   • Example: A half-secret trust arises where a testator leaves property in a will to A in a way that A appears on the face of the will to take the property as a trustee, but the will does not specify the terms of the trust.