Re Gardner (No 2)
Where a beneficiary of a secret trust died before the testator, her estate still took her share, because the trust was created when it was accepted.
Facts
A testatrix left her estate to her husband by will, on the understanding, which he accepted, that on his death it would be divided among her nieces and a nephew. One of the nieces died before the testatrix. After the husband's death, the question arose whether the deceased niece's share lapsed, as it would have done if she had been a beneficiary under the will.
Legal principle
Romer J held that the niece's estate was entitled to her share. He reasoned that the trust was created when the husband accepted the obligation, during the testatrix's lifetime, so the niece obtained an interest at that time, which did not lapse on her death. The decision has been widely criticised, because a secret trust cannot be constituted until the testator's death, when the property passes to the legatee, and until then the testator could change the will.
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 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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