REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No. 23 of 2012
CV 2006-00601
H.C.A. No. 2596 of 2004

BETWEEN
GEORGE TAYLOR JNR.
Appellant
AND
DONNA ALLISON RAPHAEL
nee DONNA ALLISON PROWELL
(executrix of the Estate of George
Taylor, Deceased)
Respondent
CLARENCE TAYLOR
Second Defendant

MIGUEL PAUL
(Substituted pursuant to the Order of Mr. Justice Jamadar dated 27th April, 2006 for the Third Named
defendant Clothilda glovier Cunningham who died on 15 th June, 2005).

Third Defendant

Panel:
N. Bereaux J.A.
R. Narine J.A.
J. Jones J.A.
Appearances:

Mr. D. Alexander instructed by Ms. A. Goddard for the

Appellant.
Dr. C. Denbow S.C. and Mrs. D. Denbow instructed by Mr. J.
Rajkumar for the Respondent.

Date delivered:

13th November, 2015.

Page 1 of 21

I have read the judgment of Jones J.A. and agree with it.

N. Bereaux
Justice of Appeal.

I too, agree.

R. Narine
Justice of Appeal.

JUDGMENT
Delivered by J. Jones J.A.

1.

This is an appeal from the decision of the trial judge whereby she found for the
validity of the will of ,George Taylor, deceased dated 5th October 1998 (the
Will) and held that by clause 2 of the Will George Taylor (the Testator)
created a half-secret, non-exhaustive, discretionary trust. The judge further held
that the Respondent holds the Testators estate as a constructive trustee for the
beneficiaries under the half-secret trust.

2.

The Testator died on the 14th March 2004. The Will was prepared by the
Respondent an attorney at law and the named executor in the Will. Prior to his
death the Testator was a standing client of the Respondent. The value of the
estate is $26,515,364.55. The Testator was survived by three children who were
the original defendants. The second defendant, Clothilda Cunningham, has since
died and her legal personal representative substituted as defendant in her stead.
Only the first defendant, George Taylor Jnr., has appealed the decision.
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3.

The dispute came before the Court by way of a contested probate action whereby
the Respondent, the claimant in the action, sought to have the Will propounded in
solemn form. The defendants raised multiple challenges to the validity of the
Will. As well, in their defence and counterclaim, by way of an alternative plea and
assuming the validity of the Will, the defendants pleaded that they were entitled to
resolve to determine the discretionary trust created by clause 2 of the Will and
sought a declaration of its determination and an order that the Respondent convey
and transfer the entire trust property to them.

4.

In answer to that plea the Respondent contended that a non-exhaustive

discretionary trust was created by the clause. This clause, she averred, entitled her
not to distribute the monies held in the trust and that, in the event that she
exercised her discretion not to distribute the money, the clause created a halfsecret trust which empowered the Respondent to dispose of the estate in
accordance with instructions given to her by the Testator during his lifetime.

5.

The defendants, on the other hand, asserted that the rule in Saunders v Vautier1
permitted them to resolve to determine the trust and accordingly, by their
counterclaim, sought the declaration and order referred to at paragraph 3 above.
There was no evidence from the defendants at trial, however, that they had
resolved to determine the trust. Neither does the Appellant by his notice of appeal
seek an order in terms of the counterclaim. The notice of appeal merely seeks an
order that the judgment be reversed or set aside.

6.

At the trial the Respondent submitted that the question of the construction and the
meaning of the Will raised by the defendants counterclaim did not properly arise
for consideration. The Respondent contended that this ought more properly to be
achieved in a construction application made pursuant to Part 71 of the Civil
Proceedings Rules (1998) as amended (the CPR) which deals with
administration claims. The trial judge rejected that argument and held that it was

(1841) Cr & Ph 240

Page 3 of 21

more in keeping with the overriding objective of the CPR to deal with these issues
at the same time as treating with the validity of the Will. The Respondent has not
appealed this part of the decision.
7.

That said the remit of this appeal is not to determine questions arising in the
execution of any of the trusts established by the Will or the rights of any
beneficiary thereunder. Its remit is simply to determine the specific issues put
forward by the parties at the trial as decided by the judge and challenged on
appeal. These issues go to the intention of the Testator as established by clause 2
of the Will and whether the clause facilitates the existence of a half -secret trust.
Not raised by this appeal are issues that may arise in the execution of any trusts
found to have been established by the Will. Queries that may arise out of the
application of any trust so found remain properly questions to be dealt with, if
necessary, at a later stage by way of a Part 71 application.

The Will:

8.

The Will makes only two dispositions and contains no residuary clause. These
dispositions are made in clauses 2 and 3.

Clause 3 provides an annuity of

$30,000.00 a year for the former common-law wife of the Testator. In this regard
the Respondent is given wide powers to appropriate from the Testators estate
such portion of it as she considers sufficient to meet the annuity given by the Will
and the costs of administration of the fund. No issue has been made of this
clause.

9.

Clause 2 states:
subject to the payment of my funeral and testamentary expenses I give
devise and bequeath all property both real and personal of which I may be
possessed of or entitled to at the time of my demise to my Executor
named herein to be held by her in trust to the capital and any income

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arising from it to any one or more of my children in such shares and at

such times as my Executor shall in her discretion think fit and without
obligation to make payments to or for the benefit of any or all of my
children or to ensure equality among those to whom payments are made
but subject only to the provisions of clause 3 hereof.

10.

Both parties agree that clause 2 establishes a discretionary trust to be administered

by the Respondent as trustee in favor of the children of the deceased. The
Respondent contends that the clause established a nonexhaustive discretionary
trust while the Appellant contends that what is established is an exhaustive
discretionary trust. As a result of the failure of the Defendants to lead evidence of
their resolve to determine the trust this distinction only becomes relevant to this
appeal on a consideration of the Respondents rationale for the existence of the
half-secret trust. It however remains an issue for determination on this appeal.

The Appeal:

11.

By the time of the hearing of the appeal the challenge to the validity of the Will
had been abandoned. The grounds of appeal being pursued are grounds (vi) to (x)
of the notice of appeal. These grounds treat with the trial judges finding that
clause 2 created a half secret, discretionary, non-exhaustive trust. In essence the
grounds of appeal are as follows:
(a) The judge erred in law in holding admissible the Testators
instructions for the creation of the half-secret trust communicated to
and recorded by the Respondent on 5th October 1998;
(b) the judge failed to appreciate and understand the nature and characteristics
of a half secret trust and erred in law in finding that the Will created a half
secret, discretionary, non exhaustive trust;
(c) the judge failed to take into account of and give effect to the contradictions
contained in the particulars of the half secret trust provided by the

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Respondent and to properly consider the contradictions as to when the

Respondent received these instructions.
12.

The challenge to the decision of the trial judge therefore is one of mixed law and
fact. Insofar as it is a question of fact it is to the admissibility of certain of the
evidence and the manner in which the judge dealt with contradictions in the
evidence of the Respondent on the instructions given her by the Testator for the
half-secret trust. Insofar as it is a question of law it is to the application by the
judge of the evidence to the law on half-secret trusts and to her finding that the
trust contained in clause 2 was a non-exhaustive discretionary trust.

The findings of the trial judge on the construction and effect of clause 2

13.

The trial judge determined that the clause established a half-secret, non-exhaustive
discretionary trust. Insofar as she accepted the Respondents submission that
clause 2 established a non-exhaustive discretionary trust there can be no argument
with this finding. The distinction between an exhaustive and a nonexhaustive
discretionary trust was considered by Ungoed-Thomas J. in the case of Sainsbury
v Inland Revenue Commissioners2 relied on by the trial judge. In treating with
the decision of the House of Lords in Gartside v Inland Revenue
Commissioners3 Ungoed-Thomas stated:
the main distinction between the discretionary trust in that case and in
our case is that in the Gartside case[1968] A.C. the trust was not
exhaustive in the sense that it did not require the whole of the income to
be distributed between the objects; whereas in our case the trusts are
exhaustive in the sense that the trustees are required to distribute the
whole of the income and have merely the discretion as to whether any
and what part of the whole which must be distributed to or for the
benefit of any individual object.

2
3

[1970] 1Ch. 712

[1968]A.C.553

Page 6 of 21

14.

Various authors on treatises on trusts have used this statement as the basis for
drawing the distinction between an exhaustive and a non-exhaustive discretionary
trust. Relying on the Sainsburys case the trial judge came to the conclusion that,
since there was no obligation evident in clause 2 for the Respondent to distribute
the entirety of the income of the Testators estate, the clause established a nonexhaustive discretionary trust. The judge was correct. The use of the words
without obligation to make payments to and for the benefit of any of my
children meant that the Respondent could exercise her discretion not to make any
payments to the Testators children at all.

In that regard therefore the trust did

not require the whole of the income to be distributed among the beneficiaries and
was therefore non-exhaustive.

15.

Where the trial judge went wrong was in her finding of the existence of a halfsecret trust. In arriving at her decision with respect to the existence of a halfsecret trust the judge admitted and accepted the evidence of the Respondent on
instructions given to her by the Testator but not contained in the Will.
In the case of Ettienne v Ettienne de la Bastide C.J. stated:
An appellate court ought not to upset a trial judges findings of primary
fact simply because the appellate court would have come to a different
conclusion. Due weight must be given to the advantage which the trial
judge has as a result of being able to see and hear the witnesses give their
evidence and to form an impression from that of their credit worthiness.
For his finding to be upset there must be some demonstrable flaw in the
process by which he reached it. It may be for instance that he drew an
inference which was not justified or failed to draw an inference which was.
Another ground on which the appeal court may interfere is that the trial
judge failed to take account of some relevant piece of evidence or to
appreciate its proper significance, or conversely that he took into account

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something which he ought not to have taken into account or attributed to it

a significance which it did not rightly have.4
16.

Both in admitting the evidence of the existence of the half-secret trust and
discounting the inconsistencies in the evidence of the Respondent on the halfsecret trust the process used by the judge to arrive at her decision was flawed. The
trial judge took into account evidence that she ought not to have taken into
account. In doing so the judge went plainly wrong. The judge made three
fundamental errors: (i) she confused credibility with the question of the
admissibility of the evidence; (ii) she limited her determination on the
admissibility of the evidence to the question of the admissibility of the note rather
than the question of whether in the circumstances parol evidence was admissible
at all; and (iii) in doing so she misread the effect of the case of Blackwell v
Blackwell5 on which she claimed to have relied.

Inconsistencies in the Respondents evidence

17.

In his submissions before the trial judge the Appellant highlighted what he said
were inconsistencies in the Respondents evidence with respect to the half-secret
trust. These inconsistencies, he submitted, were to the objects of the half secret
trust and to when the instructions were given to her by the Testator. According to
the submissions the particulars of the half-secret trust as pleaded are different
from the intentions of the Testator as identified at paragraph 34 of the
Respondents witness statement. Further the Appellant submitted that, while
paragraph 34 did not state when these intentions were communicated to her,
paragraph 61 of her witness statement states that these were instructions
communicated to her over the years since the execution of the Will.

18.

Insofar as there were inconsistencies there are clearly differences between the
particulars of the half secret trust as pleaded and those alleged by the Respondent

4
5

CA No.116 of 1996 page 8;see also Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] UKPC 21.
[1929]A.C. 318

Page 8 of 21

at paragraphs 34 and 61 of her witness statement. By the reply and defence to

counterclaim filed by the Respondent the particulars of the half-secret trust were
stated to be:

(1) The Toco Peake Bakery in St. James to be leased to George Taylor
Jnr. at a peppercorn rent.
(2) All lands owned in Tobago are to be conveyed to Clarence Taylor
and Clotilda Glovier Cunningham.
(3) The establishment of a trust for the benefit of the Testators
grandchildren to assist their entry into business.
(4) The establishment of a trust and foundation to assist in the
empowerment of persons of African descent in their entry into
business.
(5) The creation of a community for senior citizens to be located on
lands owned by the Testator in Las Lomas in East Trinidad.

19.

The evidence of the Respondent at paragraph 34 of her witness statement was that
the Testator's intention was that when he died everything he owned would vest in
her to carry out the objectives for which he had lived. This statement in itself
contradicts the terms of clauses 2 and 3 of the Will since both clauses
acknowledge an annuity out of the estate for the Testators ex- common law wife.
But it is the specific references by the Respondent to the objects of the trust that
concern the Appellant.

20.

In her witness statement the Respondent makes two references to the half-secret
trust at paragraphs 34 and 61. Insofar as the objects of the trust are concerned
neither of these is in exact terms. At paragraph 34 of her witness statement she
states that the objectives were:
(a) He wanted to create a mechanism whereby he could benefit
enterprising entrepreneurs who were prepared to take the risk of

Page 9 of 21

business, sacrifice and build wealth. This would take the form of a
revolving fund;
(b) He wanted to make provision especially for his grandchildren who
may be inclined to work hard and go into business as he was
satisfied that none of his children came up to the measure;
(c) He also wanted to ensure that persons like himself who had lived
long and worked hard could retire with integrity and not be placed
in old peoples homes to waste away. He wanted to create a
retirement community on his lands at Las Lomas which at the time
was in excess of 250 acres.
(d)He wanted to make a gift to his church, his doctor, his driver, and
other persons who were giving him a helping hand since his family
had abandoned him. The quantum and mechanisms to accomplish
the foregoing would be entirely up to me.

21.

At paragraph 61 of her witness statement under the heading Particulars of the

Secret Trusts the Respondent states:
Based on the instructions obtained over the years since Mr. Taylors
execution of the Will. I would summarize the terms of the secret trust he
wished to create as follows:
(a) The Toco Peake Bakery in St. James is to be leased to George
Taylor Jnr. at a peppercorn rent.
(b)

All lands owned in Tobago are to be conveyed to Clarence

Taylor and Clotilda Glovier Cunningham.

(c) The establishment of a trust for the benefit of the testator's
grandchildren to assist their entry into business on a revolving loan
basis.
(d) The establishment of a trust and foundation to assist in the
involvement of persons of in their entry into business;
(e) The creation of a community for senior citizens to be located on
lands owned by the testator at Las Lomas in East Trinidad.
Page 10 of 21

22.

Unlike the reply and defence to counterclaim and paragraph 61 of the witness
statement there is no mention of the lease of the Toco Peak bakery to the
Appellant or the gift to the other defendants of the lands in Tobago at paragraph
34 of the witness statement. At paragraph 34 there is a reference to a revolving
fund for loans to enterprising entrepreneurs. There is no reference at all to a
revolving fund in the reply and defence to counterclaim and the only reference to
a revolving fund in paragraph 61 is with respect to loans to the grandchildren.
Neither is there in the witness statement a reference to a trust and foundation to
assist in the empowerment of persons of African descent as is stated in the reply
and defence to counterclaim. The reference in paragraph 34 is to a trust and
foundation for enterprising entrepreneurs and in paragraph 61 it is simply to
persons. Further neither the reply and defence to counterclaim nor paragraph 61
makes reference to gifts to his church, his doctor, driver or other persons who had
helped him.

23.

There was no cross-examination of the Respondent by the Appellant on either of

those paragraphs in her witness statement. There was however some limited
cross-examination by the second defendant on paragraph 34 of the Respondents
witness statement. According to the Respondent in cross-examination the
paragraph accurately sets out her full instructions from the Testator as to his
intentions and objectives. The cross-examination therefore did not resolve the
apparent inconsistencies in the Respondents witness statement.

24.

The evidence adduced by the Respondent in her re-examination only serves to

increase the inconsistencies. Although not specifically referred to in either her
witness statement or under cross-examination the Respondent, in re-examination,
sought to tender into evidence an instruction sheet dated the 5th October 2015
which, according to her, contained the instructions for the trust.

25.

According to the Respondent she recorded what the Testator was saying to her
about the instructions for the preparation of the respective Trust and what he
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wanted done with his money after he died, before he [had] time to put it in the
foundation. The effect of this evidence is that, according to the Respondent, the
instructions for the half secret trust were given to her on the same date as the
instructions for the Will and prior to its execution.
26.

Thereafter the Respondent attempts to put into evidence the instruction sheet
referred to in the judgment as the note. By agreement the instruction sheet was
tendered into evidence pending a determination by the trial judge as to its
admissibility after closing submissions. The note was subsequently admitted. The
contents of the note are instructive. The note is in manuscript and at times
difficult to read. Assistance in this regard can be found in the Respondents
opening submissions. Insofar as the Respondent repeats the contents of the note I
accept the recitation as accurate. Unfortunately the Respondent does not read the
complete note. The words below in italics have not been clarified by the
Respondent in the opening address and represent my reading of the contents of the
note.

27.

On the face of it rather than relating solely to the half-secret trust the instructions
seem to relate to the Will itself. No issue was made of this at the trial however.
The note, dated 5th October,1998 says:
Spoke to client by telephone. He insists that wife Sybil and son
wants to kill him for his property. Wants to complete will urgently.
Telecon:
-client want trust to give everything to me?? Wants me to draft it.
-claims he spoke to Mr. Thorne S.C. about trust before his death6
-agrees to get independent legal advice on will and to have same
executed by his own witnesses
Distribution of estate- not on face of will
- wife to get monthly sum for expenses $2,500.00 is more than 7

6
7

in the context this seems to be a reference to Mr. Thornes death

the last word is illegible.

Page 12 of 21

- son does not know how to run business woman will take everything
from him-Bakery at peppercorn rent for life
- Clothilda and Clarence lands in Tobago
- Clothilda still has money in the bakery
- Trust for grand children if they get into business to pay back any
money they get. It is a start.
- Foundation/revolving fund for person poor who want to work hard &
- go into business
- church(Anglican)
- otherwise as I see fit

28.

In these instructions no reference is made to the community for senior citizens

contained in the reply and defence to counterclaim and paragraphs 34 and 61 of
the witness statement. Further neither the pleading nor paragraph 61 make any
reference to the Anglican church. While paragraph 34 makes reference to a church
it does not specify the Anglican church. Neither do the instructions speak of gifts
to his doctor, his driver and other persons who had been giving him a helping
hand since being abandoned by his family as is stated in paragraph 34 of the
witness statement.

29.

The evidence adduced by the Respondent was not only inconsistent on the objects
of the half-secret trust but was inconsistent on the time when she received these
instructions.

By her witness statement she states that the instructions were

obtained by her over the years since the Testators execution of the Will. I
understand this to mean after the execution of the Will. In her evidence given in
re-examination she claims that these instructions were given to her before the
execution of the Will by the Testator. There is nothing in her evidence that seeks
to resolve any of these inconsistencies.

30.

The trial judge seems to accept that there are inconsistencies, or discrepancies as
she terms them, but deals with them as follows:
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The discrepancies highlighted by the Defendants relating to the

Particulars of the half-secret trust can be rectified by the Claimants
parol evidence contained in her witness statement. In Blackwell v
Blackwell Lord Warrington of Clyffe opined:
it has long been settled that if a gift be made to a person or persons in
terms absolutely but in fact upon a trust communicated to the legatee
and accepted by him, the legatee would be bound to give effect to the
trust of course in these cases the trust is proved by parol evidence,
and such evidence is clearly admissible.

31.

The judge therefore concludes:

it is trite law that the Particulars of a half-secret trust need not be
contained in a written document; it is an oral communication to the
trustee to carry out the wishes of the Testator. The Court therefore
concludes that the combined evidence contained in the Claimants
witness statement and the contemporaneous note supports the Claimants
assertion that the Testator created a half-secret trust.

32.

In treating with what she terms discrepancies in this manner the trial judge fails
to treat with or resolve the inconsistencies in the Respondents evidence even
though these inconsistencies went to the heart of the evidence as to the existence
of a half-secret trust. Rather the judge treats what was in essence an issue of
credibility as a question of the admission of evidence but limits the question of
admissibility to the note or instruction sheet.

33.

The admission of the instruction sheet does not resolve the inconsistencies. In fact
the inconsistencies increase. In particular there remain obvious differences in the
Respondents evidence as to the beneficiaries or objects of the trust and the time

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when she received these instructions whether at the time of the instructions for the
Will or after the execution of the Will.

34.

In addition, given her determination that the Respondent holds the Testators
estate as a constructive trustee for the beneficiaries under the half -secret trust, the
failure of the judge to adequately resolve these inconsistencies creates an
uncertainty with respect to the identity of the beneficiaries of the constructive
trust found to have been established by her.

The admissibility of the evidence on the half secret trust.

35.

It is trite law that in construing a will the general principle is that a court must
ascertain the intention of the testator as expressed in the will. The policy
underlining this rule was stated by Warner JA in Steele v Annisette to be that
detailed requirements of the legislation as to execution attestation and
publication cannot in general be nullified by allowing extrinsic evidence as to
intention save in limited circumstances.8 In this regard Warner JA was referring
to the detailed requirements contained in the Wills Act9.

36.

A duly executed will is the only document that the law recognizes as permitting a
testator to speak from the grave. The starting point therefore is that the intention
of a testator must be ascertained from the contents of that will. In the case of
Blackwell, the only case relied on by the trial judge with respect to the existence
of a half-secret trust, the question for determination was to what extent is it
possible to give effect to testamentary intentions that are at variance with the
provisions, first of the Statute of Frauds, and later of the Wills Act. In that case,
as in this one, the claim was that the trust was a half-secret trust.

37.

In Blackwell rather than purporting to be a gift to the trustee beneficially, a fully

secret trust, the will identified the bequest to the legatee as being in the nature of a

8
9

CA Civ 65 of 2005 at pages 10 and 11 paragraph 17.

Chap 9:03

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trust but did not state the beneficiaries of the trust. The issue there was the
admissibility of parol evidence to identify the beneficiaries of the trust. It was
held by the House of Lords that where a gift in a will was made to a legatee on
trusts, not disclosed by the will but communicated to the legatee and accepted by
him, parol evidence was admissible to prove that the legatee received from the
testator a communication of the trusts to be attached to the gift and to be binding
on him and that he accepted the gift on those trusts. The Court however held that
such evidence was only admissible insofar as it did not contradict the terms of the
will. The evidence there was found not to contradict the terms of the will and
therefore admissible.
38.

The rationale for the receipt of parol evidence was succinctly put by Viscount
Sumner in this way:
For the prevention of fraud equity fastens on the conscience of the
legatee a trust, a trust, that is, which otherwise will be inoperative; in
other words it makes him do what the Will in itself has nothing to do
with; it lets him take what the Will gives him and then makes him apply
it as the court of conscience directs, and had done so in order to give
effect to wishes of the testator which would not otherwise be effectual.
To this, two circumstances must be added, to bring the present case to
the test of the general doctrine, first, that the Will states on its face that
the legacy is given on trust, but does not state what the trusts are, and
further contains a residuary bequest, and, second, that the legatees are
acting with perfect honesty, seeking no advantage to themselves, and
only desire, if the court will permit them, to do what in other
circumstances the court would have fastened it on their conscience to
perform.

Page 16 of 21

39.

The first part of Viscount Sumners statement deals with the general doctrine
applicable to fully secret trusts: a gift which is on the face of it absolute but which
in fact was made to the legatee on the legatees promise to give effect to certain
wishes of the testator not reflected in the will but told to the legatee privately. To
this general doctrine Viscount Sumner adds the two circumstances which brought
the gift into the realm of a half-secret trust: the will says that the gift is given on
trust but does not say what the trust is and the legatee is acting honesty seeking no
personal advantage.

40.

In the instant case there is no allegation of lack of honesty on the part of the
Respondent. Indeed it could be said that, in placing before the court all the
evidence which she considered relevant to discharge her duty to the Testator, the
Respondent has at all times acted in accordance with the highest traditions of the
profession of which she is a member. The issue here is one of law: was the
evidence admissible or was it inadmissible? The answer to that question lies in
whether the evidence seeks to contradict or supplement the terms of the Will.
The judge came to the conclusion that the evidence supplemented the Will. In
doing so the judge was wrong.

41.

In treating with the admissibility of the note the judge rejected the defendants
submission that the note contradicted the terms of the Will and accepted the
submission of the Respondent that the note was admissible not to contradict the
provisions of the Will but to fill in the terms of the half secret trust. In admitting
the note the Judge relied on a statement of Viscount Sumner in Blackwell cited to
her by the Respondent where he said:
the will states on the face that a legacy is given on trust but
does not say what the trusts are why should equity forbid an
honest trustee to give effect to his promise, made to a testator and
compel him to pay another, legatee, about whom it is quite certain

Page 17 of 21

that the testator did not mean to make him the object of his
bounty?

42.

Here not only did the trial judge err in using the note containing the instructions
for the half secret trust to corroborate the evidence of the Respondent obtained
from the very note but the statement of the law relied on did not support her
conclusion. In coming to the conclusion that the note was admissible the judge
disregarded the fundamental position as established in Blackwell, namely, that
parol evidence is only admissible where it did not contradict the terms of the will.

43.

Indeed that position is reflected in the words but does not say what the trusts are
contained in the very statement of Viscount Sumner relied on by her. It is this
lacuna in a will that permits parol evidence so that a fraud is not perpetrated by
the person whom on the face of the will is the beneficiary of the gift, in the case of
the fully secret trust, or, in the absence of directions as to the terms of the trust,
the trustee in the case of a half-secret trust.

44.

In the instant case clause 2 says what the trusts are: to hold the property in trust
to the capital and any income arising from it to any one or more of my children in
such shares and at such times as my executor shall in her discretion think fit. By
the clause the Testator therefore vests all his property, not the subject of clause 3,
in the Respondent to hold the same on trust for his children. It is in absolute
terms. The fact that the Respondent has a wide discretion with respect to the
disposition of the capital and income does not change the fact that the property is
to be held on trust for the children of the Testator. This is the object of the trust
and they are the beneficiaries. The Respondents discretion, as wide as it is, is
solely with respect to the manner in which the proceeds are to be distributed.

45.

On whatever version of the trust presented the terms clearly contradict clause 2 of
the Will. The terms are not consistent with an absolute trust in favor of the
Testators children and in the circumstances the evidence of such a trust ought not
to have been admitted.
Page 18 of 21

46.

That there is this contradiction is supported by the manner in which the

Respondent pleads the case with respect to the half secret trust. In her defence to
counterclaim the Respondent, the claimant in the action, pleads:
9. the Claimant contends that on a true construction of the
said Will a non-exhaustive discretionary trust was
created which entitled the Claimant to exercise her discretion not
to distribute the monies held by her in the said discretionary trust
to the Defendants who are not entitled to determine the said trust.
10.

In the event that the Claimant exercises her discretion not to

distribute the monies in the discretionary trust, it will be

contended that the trust created under clause 2 of the said will was
a half secret trust which empowers the Claimant to dispose of the
Testators estate in accordance with the Testators instructions
communicated to and accepted by the Claimant during the
Testator's lifetime.

47.

The case therefore set up by the Respondent is that the half-secret trust is
supplemental to the discretionary trust established by the Will and will only arise
on the occurrence of a particular event, that is, in the event that she determines not
to exercise her discretion under clause 2.

The Will itself does not provide for

this. Neither, is there any basis for this revealed in the evidence given by the
Respondent on the instructions given her by the Testator or on the contents of the
instruction sheet.

48.

Further the judge could, and ought to, have come to the conclusion that no halfsecret trust was established by another route. In arriving at her decision the trial
judge accepts as a correct statement of the law the principle stated in Underhills
Law of Trust and Trustees that for a half secret trust to exist there must be:
(a) an intention to create a trust;
(b) communication of this to the intended recipient of the property;
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(c) acceptance by the intended recipient;

(d) the communication must conform strictly to the language of the will
and;
(e) the communication must be made prior to or contemporaneously
with the execution of the will.10

49.

There can be no quarrel with this statement of the law. However the trial judge
failed to properly consider (d) and (e), that is, whether the communication, as to
the existence of the trust, conformed strictly to the language of the Will and failed
to resolve the dilemma presented by paragraphs 34 and 61 of the Respondents
witness statement as to the time of the receipt of the instructions from the
Testator. Instead the judge concluded that proof of (d) and (e) were to be found
in the note; admitted the note and concluded that there was in existence a halfsecret trust.

50.

In the circumstances with respect to her finding that the Testator created a halfsecret trust and that the Respondent holds the Testators estate as constructive
trustee for the beneficiaries under the half-secret trust the judge was plainly
wrong.

The evidence as to the existence of the half- secret was inadmissible

since it contradicted the terms of the duly executed Will. In the circumstances the
evidence could not have supplemented clause 2 of the Will.
51.

Accordingly there was no evidence, properly admissible at the trial, upon which
the judge could have found for the existence of a half-secret trust.

In the

circumstances the judges determination that the Testator created a half-secret

trust and that the Respondent holds the Testators estate as a constructive trustee
for the beneficiaries under the said half- secret trust was wrong.
52.

Accordingly, insofar as the appeal challenges the judges finding of the existence
of a half secret trust and her finding that the Respondent holds the Testators

10 Underhill and Haytons law relation to Trusts and Trustees 17 th ED p 38 paragraph 1.72

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estate as a constructive trustee for the beneficiaries under the half secret trust, the
appeal is allowed. The order of the judge in this regard therefore is set aside.

Dated the 13th day of November, 2015.

Judith Jones,
Justice of Appeal

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