Fully Secret Trustees

Ottaway v Norman: Intention, Communication, acceptance/acquiescence

1. Intention to create trust:
Kasperbauer v Griffith- 3 certainty of intention, subject matter, and objects
Imperative language, not precatory
2. Communication:
Wallgrave v Tebbs- ST must communicated to the secret trustees

 No communication = trust failed. Property goes to trustees.

Moss v Copper- must communication before death of testator, may after / before
will.
Re Keen – may be by sealed envelope given before death.
Re Stead- communication to 1 trustee:

Joint tenants- communication before execution= bind both trustees. After

execution, bind only A, B take absolutely.
 Tenants in common- regardless before/after, only binds A, B take
absolutely.
3. Acceptance:
Blackwell2, Ottaway v Norman- Accept expressly or acquiescence
Moss v Copper- Silent can be acceptance
BOP- Ottaway v Norman- Clear evidence
Half Secret Trust
Re Keen- Will refer to the existence trust
Blackwell2- 3 requirement
Re Keen- Communication must take place before or at the execution of the will. future
letter cannot- Re Bateman
Trusts fail, FTS- Beneficiary under the will take absolute; HTS- secret trustees hold the
property on RT for the estate.
Re Young- witness who is a beneficiary under a will, will affect the legacy.
Re Gardener (No.2) – secret beneficiary dies before testator then the SB’s estate may
claim the interest.
ST is a constructive trust.
If land involve, writing require- Re Baillie S53 (1) (b) LPA?
Mutual Will
Couple executes wills in identical/ similar term leaving everything to the survivor and on
the survivor’s death to identified beneficiaries.
Dufour v Pereira- requires identical wills and a contract- binding once one of the
testator died.
Charles v Fraser – requires testator to agree not to revoke MW
Re Goodchild – revokes MW- still imposes an equitable obligation.
Requirements of MW:
1. MW made pursuant to an agreement
Could be joint will or mirror will
Re Hagger- life interest, Re Green, absolute interest, Re Dale, where no property
is left to each other.
2. An agreement not to revoke the MW
Re Dale- consideration for the contract is the agreement to not revoke their MW.
3. A binding event
Re Hobley- may revoke before a binding event
Re Walters- CT imposes at the time of the first testator’s death.
Property bound by the MW
Re Dale- total property on death of each bound- includes all survivor’s property, even is
acquired after the death of first testator.
Donatio Mortis Cause
Re Craven’s Estate (No.1) - conditional on death, contemplation of death, part with
dominion
1. Intended to be conditional on death:
Wilkes v Allington- Intend the gift to be effective only on death, if donor
recovers, donation must be returned
Gardener v Parker- donor need not expressly use those terms
2. Death must be contemplated in the near future- Re Craven’s Estate (No 1):
Wilkes v Allingtion- need not die of the expected cause, need not be on his death
bed
Valle v Birchwood- is a subjective test-
Re Dudman- cannot by suicide when it was illegal
3. Donor must part with dominion:
Something that gives control over or access to the property must be handed to
done
Sen v Headley- requires intention to depart with dominion and sufficient delivery
Valle v Birchwood- donee must have dominion, more than possession.
Re Lillingston- passing the means of access to the subject matter suffices
Birch v Treasury Solicitor- a chose in action may be delivered by passing the
“essential indicia / evidence of title” – constructive trust
Woodard v Woodard (CAR- KEY) - nature of possession can change loan to
gift
Sen v Headley/ Valle v Birchwood -Land can be transfer through DMC:
All kind of property, land and shares are capable of being subject matter
Re Weston- it is not possible to donation shares. Cf Staniland v Williot- public
company shares, yes.
The necessary ingredients of a donatio mortis causa were summarised by Nourse LJ in Sen v
Headley as follows (at 431): (a) First, the gift must be made in contemplation, although not
necessarily in expectation, of impending death; (b) Secondly, the gift must be made upon the
condition that it is to be absolute and perfected only on the donor’s death, being revocable until
that event occurs and ineffective if it does not; (c) Thirdly, there must be a delivery of the subject
matter of the gift, or the essential indicia of title thereto, which amounts to a parting with dominion
and not mere physical possession over the subject matter of the gift.