Re Boyes
A fully secret trust fails if the terms are not communicated to the legatee during the testator's lifetime, so the legatee holds on resulting trust for the estate.
Facts
George Boyes left all his property by will to his solicitor, Mr Carter. Before making the will, he told Mr Carter that he wanted him to hold the property on trust according to directions that he would give him by letter. He never gave such directions during his lifetime, but after his death, two unattested documents were found, addressed to Mr Carter, stating that he wanted the property to go to a woman with whom he had had a relationship.
Legal principle
Kay J held that the secret trust failed, because its terms had not been communicated to Mr Carter during the testator's lifetime. Mr Carter had accepted that he was to be a trustee, so he could not keep the property for himself, but since the terms of the trust were not known to him, he held it on resulting trust for the testator's next of kin. Communication and acceptance of the terms of the trust are essential for a secret trust to arise.
Related cases on secret trusts and mutual wills
- Blackwell v Blackwell [1929] AC 318
- 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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