Blackwell v Blackwell
A half secret trust, where the will shows that the legatee is a trustee but not the terms of the trust, is valid if the terms were communicated to the trustee before or at the time of the will.
Facts
A testator left £12,000 by will to five people, on trust to apply the income for the purposes indicated by me to them. Before he made the will, he had told the trustees that the money was to be used for the benefit of a woman with whom he had had a relationship and their illegitimate son, and the trustees had accepted. The testator's widow and legitimate son argued that the half secret trust was void, because its terms were not set out in the will.
Legal principle
The House of Lords held that the half secret trust was valid. Viscount Sumner said that both fully secret and half secret trusts rest on the same principle, which is that the trust operates outside the will, being created by the communication and acceptance of the trust during the testator's lifetime. It would be a fraud for the trustees to deny the trust. For a half secret trust, the terms must be communicated to the trustee before or at the time the will is made, since the testator cannot reserve the power to make future unwitnessed dispositions.
Related cases on secret trusts and mutual wills
- Re Boyes (1884) 26 Ch D 531
- Re Cleaver [1981] 1 WLR 939
- Re Gardner (No 2) [1923] 2 Ch 230
- Re Goodchild [1997] 1 WLR 1216
- Healey v Brown [2002] EWHC 1405 (Ch), [2002] WTLR 849
- Kasperbauer v Griffith [2000] WTLR 333
- Re Keen [1937] Ch 236
- McCormick v Grogan (1869) LR 4 HL 82
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