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.

Citation
(1884) 26 Ch D 531
Court
Chancery Division
Year
1884
Subject
Equity and Trusts
Topic
Secret trusts and mutual wills

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.

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