A secret trust is a
trust
Trust often refers to:
* Trust (social science), confidence in or dependence on a person or quality
It may also refer to:
Business and law
* Trust law, a body of law under which one person holds property for the benefit of another
* Trust (bus ...
which arises when property is left to a person (the
legatee
A legatee, in the law of wills, is any individual or organization bequeathed any portion of a testator's estate.
Usage
Depending upon local custom, legatees may be called "devisees". Traditionally, "legatees" took personal property under will a ...
) under a
will
Will may refer to:
Common meanings
* Will and testament, instructions for the disposition of one's property after death
* Will (philosophy), or willpower
* Will (sociology)
* Will, volition (psychology)
* Will, a modal verb - see Shall and will
...
on the understanding that they will hold the property as
trustee
Trustee (or the holding of a trusteeship) is a legal term which, in its broadest sense, is a synonym for anyone in a position of trust and so can refer to any individual who holds property, authority, or a position of trust or responsibility to ...
for the benefit of
beneficiaries
A beneficiary (also, in trust law, '' cestui que use'') in the broadest sense is a natural person or other legal entity who receives money or other benefits from a benefactor. For example, the beneficiary of a life insurance policy is the perso ...
who are not named in the will.
Secret trusts are divided into two types:
*''Fully secret trusts'', where the will is totally silent as to the existence of a trust; and
*''Semi secret trusts'' or ''half secret trusts'', where the will provides that the legatee is to hold the property on trusts, but does not specify the terms of the trust or the beneficiary.
Secret trusts are something of a historical anachronism. They arose because in most
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
jurisdictions, wills are public documents after they have been admitted to probate, and where the testator wishes to leave a legacy to (for example) a mistress or an illegitimate child without causing pain or embarrassment to his family, he could devise the property to a trusted person to avoid the name of the mistress or illegitimate child appearing in the will. They fall outside of the Wills Act.
Despite their rarity, secret trusts still remain a staple of many law courses at university level, as they represent a rare exception to the rule that any disposition on
death
Death is the irreversible cessation of all biological functions that sustain an organism. For organisms with a brain, death can also be defined as the irreversible cessation of functioning of the whole brain, including brainstem, and brain ...
must be by way of a will (or a document
incorporated by reference into a will) which complies with the applicable statutory requirements in the relevant jurisdiction.
[The other main exception, also a historical anachronism rarely seen in modern times, is a '']donatio mortis causa
A gift, in the law of property, is the voluntary and immediate transfer of property from one person (the donor or grantor) to another (the donee or grantee) without consideration. There are several type of gifts in property law, most notably ...
'' Historically, the courts have felt it more important to uphold the rights of the putative beneficiary and to avoid the
unjust enrichment
In laws of equity, unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law sees as unjust. Where an individual is unjustly enriched, the law imposes an obligation upon the recipient to make re ...
of the legatee than to uphold the general rule of
public policy
Public policy is an institutionalized proposal or a decided set of elements like laws, regulations, guidelines, and actions to solve or address relevant and real-world problems, guided by a conception and often implemented by programs. Public p ...
that property must devolve by will on death.
The
All-Woman Supreme Court
The All-Woman Supreme Court refers to a special session of the Supreme Court of Texas which met in 1925. The court consisted of Hortense Sparks Ward, who was appointed special chief justice, Hattie Leah Henenberg, and Ruth Virginia Brazzil. It sa ...
in Texas was convened to deal with the results of a secret trust.
See also
*
Secret trusts in English law
In English law, secret trusts are a class of trust defined as an arrangement between a testator and a trustee, made to come into force after death, that aims to benefit a person without having been written in a formal will. The property is giv ...
Footnotes
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Wills and trusts