Ottaway v Norman
A fully secret trust requires the testator's intention to subject the legatee to an obligation, communication of that intention to the legatee, and the legatee's acceptance.
Facts
Harry Ottaway left his bungalow and its contents by will to his housekeeper, Miss Hodges, with whom he lived. He had told her, and she had agreed, that she would leave the bungalow and contents to his son, William Ottaway, when she died. Miss Hodges later made a will leaving the bungalow to Mr Norman instead. After her death, William claimed the bungalow under a secret trust.
Legal principle
Brightman J held that there was a fully secret trust of the bungalow in favour of William, binding on Miss Hodges's estate. He said that the essential elements of a fully secret trust are the intention of the testator to subject the primary donee to an obligation in favour of the secondary donee, the communication of that intention to the primary donee, and the acceptance of that obligation by the primary donee, either expressly or by acquiescence. The obligation could be to leave property by will, even though it would arise only on the legatee's death. A trust of money left to Miss Hodges failed, because it was not clear that she had agreed to leave whatever remained of it.
Related cases on secret trusts and mutual wills
- Blackwell v Blackwell [1929] AC 318
- 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
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