A preliminary point to bear in mind is thať secret Trust arise most often where a testator wishes to conseal the identity of the beneficiary, for instance where the beneficiary is an illegitimate child or mistress. Hence, secret trusts are trusts which appear in wills but which do not disclose the identity of the beneficiaries. Thus, secret trusts are also used for lawful purposes though it has been classified or categorized in two form, thať is the fully secret trust and half secret trust.
i) Fully secret Trust
A factual point to note is thať, in a fully secret trust, on the face of the will tge gift appears to be beneficial. Therefore, the will contains no reference to a trust at all. For example, a clause in a will as follows: I give #1000 to Atinuke, will create a fully secret trust if the donee has promised the testator thať he will hold the property on trust for the beneficiary whose identity has been communicated to him, however, the secret beneficiary can enforce the trust. Thus, three essential requirement must be met ; one, the testator must intend thať the donee should hold the property for another, Two, the testator must communicate this intention before the gift takes effect; a gift in a Will takes effect on the death of testator. Three, the donee must accept the trust.
However, if there is no communication of the secret beneficiary’s identity before the testator’s death, the beneficiary cannot enforce the trust and the donee holds on a resulting trust. This was illustrated in the case of RE BOYES.
Interestingly, if the donee does not promise to hold the property for the benefit of the secret beneficiary, he takes benefically even if a letter is found later with the will which purports to create a trust. This was demonstrated in the case of BOWMAN V SECULAR SOCIETY.
ii) Half secret Trust.
A preliminary point to bear in mind is that, in Half secret trust, the will imposes the trust but does not reveal the beneficial interest. Thus, if the testator declare in his will thus, ” I gave #1000 to Atinuke on trust declared ”, the secret beneficiary can enforce the trust if the promise was given and the secret beneficiary’s identity was communicated before or at the time of the making of the will and the will makes it clear thať communication has already taken place. This was illustrated in the case of BLACKWELL V BLACKWELL. However, if the secret beneficiary cannot enforce the trust, the donee holds property on a resulting trust. Thus, if a testator by subsequent will increases a gift already bound by a good half secret trust, and no fresh promise is given in relation to the increased gift, the trust is valid as to the original gift only, such principle was laid down in the case of RE COLLIN COOPER.
Thus, the secret beneficiary under fully secret trust and half secret trust does not derive his title under the will and it is therefore not testamentary. In other words the beneficiary takes a title ” dehor the will ” he does not lose his benefit if he or his spouse witnesses the Will. This was demonstrated in the case of RE YOUNG.
In conclusion, whereas secret trust does not from part of Will, documents incorporated into a will form part of the will. Consequently, a beneficiary under a secret trust does not drive his title under the Will, so he can attest the will and still retain his gift and the gift does not lapse if he predeceases the testator.
Written By: Akinola Michael. A
