What is the best rationale or explanation for the recognition and enforcement of secret trusts? Discuss.
The doctrine of secret trusts (STs) have long been upheld by the courts, however, the basis for doing so is unclear and has been a strong area of contention by academics. The two principal suggestions are that they arise to prevent fraud on the part of the trustee – ‘the Fraud Theory’ and that they arise/operate outside the Will so as not to invoke the testamentary formality rules under the Wills Act 1837 (WA) – ‘the Dehors the Will Theory’. Firstly, this essay through the analysis of leading cases and academic arguments, will show well founded reasoning for the doctrine of ST. Then, it will assess which theory is the best explanation for
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According to s. 9 Wills Act 1837 –, “No Will shall be valid unless it is in writing, signed by the testator and attested by two witnesses.”
Nevertheless, ST is the exception to the formalities of the testamentary disposition as it does not apply the formality requirement of the Wills Act. Richard Spearman QC in Freud defined STs as “providing or the testator a means of creating a trust without publicly identifying the beneficiary and/or the terms if the trust.”
There are two types of ST one is fully secret trust (FST) and another is half secret trust (HST). In FST on the face of the Will, it appears to be an absolute gift, whereas for HST, the Will makes clear the existence of the trusts, consequently, as in Ottaway v Norman, the ‘beneficiary’ is not an absolute beneficiary, but actually holds the property on some kind of trust for another unknown beneficiary.
Enforcement of STs
Wills Act does not enforce ST, however, equitable jurisdiction recognises ST. The whole basis of an ST as I understand it from Re Snowden, is that they operate outside the Will, changing nothing written in it and allowing it to operate according to its tenor but then fastening a trust to the
There is clear disagreement over the question of whether Target v Redferns was correctly decided. One point of view is that “Lord Browne-Wilkinson took a false step in Target when he introduced an inapt causation requirement into the law governing … substitutive performance claims" (per Professor Charles Mitchell in a lecture on "Stewardship of Property and Liability to Account" delivered to the Chancery Bar Association on 17 January 2014); the other is that “I consider that it would be a backward step for this court to depart from Lord Browne-Wilkinson's fundamental analysis in Target Holdings” (per Lord Toulson in AIB Group (UK) Plc v Mark Redler & Co Solicitors [2014] UKSC 58). Critically discuss the competing arguments. Introduction The law is ever changing and as such, new principles arise from time to time.
Trustees are fiduciaries with a trust relationship and confidence towards another, Millet J in Bristol West Building v Mothew states that fiduciary duties would be imposed on a person who holds a position on trust, confidence and influence. While there are established categories of fiduciary e.g. trustee/beneficiary and solicitor/client, the categories are not closed. Thus, Fridman found that an agent is a fiduciary because whether he is paid or acts gratuitously, he has the power to alter the legal relation of the principal. This essay will discuss the duties of a fiduciary, examining case laws and academic arguments.
Andrews N, ‘Does a third party beneficiary have a right in English law?’ (1988) 8 Legal Studies 14
The Incorporated Council of Law Reporting for England & Wales. - Counsel [24] See footnote 22 – but page 61 [25] GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s doctrine and its critics. [26] REGINA v HER MAJESTY'S TREASURY, Ex parte SMEDLEY, [COURT OF APPEAL], [1985] Q B 657, 19 December 1984, (c)2001 The Incorporated Council of Law Reporting for England & Wales [27] MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W Green & SON LTD, 1968, Convention, page 31 [28] See footnote 22 but page 64
Given that it lies within the domain of equity, the case law indicates a great flexibility in its application, both in the substantive requirements of proof demanded by the courts and in the manner in which the courts will satisfy the equity. It is the first of these aspects of the doctrine that I will examine in this essay. I will look at the shift in the evidentiary requirements and what a representation (or an assurance of rights), a reliance (a change of position on the basis of that assurance) and a detriment (or unconscionable disadvantage) - the three pre-requisites for a successful claim - have come to mean with regard to case law and in particular the judgement of Judge Robert Walker in the Court of Appeal in Gillett v. Holt[1], in which the plaintiff had been given repeated assurances over many decades that he would inherit the defendant's estate, and remained in service to him at least p... ... middle of paper ... ... operty, 16th Ed, Butterworths K. Gray & S.F Gray - Land Law, 2nd Ed, Butterworths Professor Cedric D Bell - Land: The Law of Real Property, 3rd Ed, Old
Secret trust evolved as a response act to the Wills Act 1837 and was originally created to prevent fraud. As the House of Lords held that equity will not allow a statute to be used as an instrument of fraud by the secret trustee .
Section 9 The Wills Act 1837 and Section 17 of the Administration of Justice Act 1982 states that a will is not valid unless it is in writing and signed by the testator or by some other person at the testators direction. This signature must illustrate an intent by the testator to give effect to the will. Also, the signature must be made in the presence of at least two witnesses who are present at the same time that either attests and signs the will or acknowledges the testators signature. An attestation is where a witness declares that the will has been executed in their presence following the formalities set out by law (Sherrington and others v Sherrington 7 ITELR 711, [2005] 3 FCR 538).
The legal issue of constitution of trusts is very important, judicial decisions over the years on cases where trusts were not properly constituted indicates that constitution of trusts could be quite complex and must be very cautiously done by a property owner as a simple factor could make his trust void. An express trust is completely constituted either by effectively transferring property to trustees or by effectively declaring a trust. In case of personal property, the declaration of the trust may be put in writing; however, equity will not perfect an imperfect gift. It is only when the trust is constituted that it is binding on the settlor. The long-standing idea that equity will not perfect an imperfect gift can be traced back to the 19th century cases of Ellison v Ellison and Milroy v Lord , and was further emphasized in the 20th century in the case of Re Fry .
In the ever-changing world today, companies are continuing to innovate so they can maintain a competitive advantage. In order to keep their ideas secret, companies use legal documents called non-disclosure agreements or confidentiality agreements. Thousands of companies sign these contracts with other businesses and their own employees to ensure that current projects, innovative ideas, or new products are undisclosed from competitors. NDAs provide a level of protection and comfort when disclosing information to another party.
The Act allows negligence as the sole ground unlike common law which required the claimant to establish ‘fraud’ even if negligence existed. It is believed that the ‘d...
It also arises when an owner ignores the rights of another person with an interest in that same property. Proprietary estoppel is a legal principle which prevents someone, who has led another to believe in a particular state of affairs, from illegally going back on the words which led to their belief. It arose in the case of Dillwyn v Llewelyn (1862), where a son spent £14,000 on building a house on the land with his father approval and promise that he would be in charge of that land but later found out that his father did not leave the property to him in his will. Lord Westbury held that the freehold in the land had been transferred to the son. However, four elements must be proved in order to claim for proprietary estoppel, which are : a) An assurance, b) Reliance on that assurance, c) Detriment, d) Unconscionability.
As society has progressed, there have been many new innovative and unbelievable developments in almost all aspects of life that have ultimately created an impact. More specifically, advancements in technology have rather had a much larger and intense impact on society as it continues to grow. Technology has allowed for many great and useful applications that has made life much easier and convenient. However, many aspects of technology have given a rise to a number of social and ethical issues, causing numerous debates and concerns. One of the more prominent concerns deals with the issue of privacy rights.
Confidentiality is defined as the protection of personal information. It means keeping a client’s information between the health care providers and the client. Every single patient has the right to privacy regarding their personal information from being released to anyone outside of their health care providers. Health care providers have a legal and ethical responsibility to protect all information regarding patients by not disclosing their information to anyone without their written consent from the patient.
However, there is an argument of opinion regarding how and why a secret trust should face outside the Wills Act 1837.Thus, Lord Warrington said in Blackwell v Blackwell case that what is enforced is not a trust imposed by the will but one arising from the acceptance by the legatee of a trust communicated to him by the testator on the faith of which acceptance the will was made or left unrevoked. The dehors’ theory and fraud theory are necessary to explain the enforcement of secret trust. Further this theory elaborated secret trust not compulsorily match with Section 9 of wills act 1837 .The orthodox view of this theory is that secret trusts are express inter vivos trust to which the requirements of the wills act are of no relevance. If the
Honesty and integrity are very important in the medical field. We as healthcare workers are given such trust and responsibility. We should always strive to do our best and when faced with tough situations. When we don't always know what to do or the proper way to react we should always be honest. Let our superiors know what is going on and ask for advice when we need to. This would show that we are honest. When we come into contact with patients they rely on us to do the right thing and always perform our job with integrity. Often people’s lives are in our hands. We have to care about the patient and care about our job in order to continue to provide quality care. If someone hates their job they are not going to give their best in every way they can. The medical field is not a place for that person.