802
802–818
Reconceptualizing the fully-secret trust
Stewart Manley*
Abstract
In reconceptualizing the fully-secret trust, this art-
icle attempts to resolve a number of long-standing
disagreements, such as why secret trusts are
enforced despite non-compliance with the Wills
Act, and whether fully-secret trusts are inter
vivos or testamentary. It also briefly addresses
broader theoretical questions about trust law,
such as whether a transfer can simultaneously be
both a gift and on trust and whether the identity
of a settlor is determined by intention or owner-
ship. I propose that, contrary to conventional the-
ories, the settlor of a fully-secret trust is not the
testator, but the secret trustee; and the fully-secret
trust is constituted not upon the testator’s death
but later, at the time that the secret trustee receives
the trust property from the executor of the testa-
tor’s estate.
Introduction
Secret trusts are scrutinized in every trust law text-
book. Numerous scholarly articles have debated their
theoretical basis. Yet they remain a conceptual con-
undrum. Is a fully-secret trust testamentary or inter
vivos? Is it express or constructive? Should its appar-
ent failure to comply with the requirements of the
Wills Act be disregarded to prevent fraud or because
it is dehors (outside the scope of) the will?1
Additionally, a number of practical problems inherent
in fully-secret trusts—what happens if the secret trus-
tee disclaims, if the secret trustee or beneficiary pre-
1. PA Johnson, ‘Secret Trusts: A Look at their Basis, Method and Consequences of their Enforcement’ (1985–1986) 1 Est & Tr Q 176.
2. AH Oosterhoff, ‘Secret and Half-Secret Trusts’ (2006–2007) 26 Est Tr & Pensions J 173, 175–77.
3. ‘Constitution’ of a trust refers to the moment that the trust property is conveyed to the trustee. Constitution is the second of two necessary steps to creating a
valid and enforceable trust, the first step being declaration of the trust.
ß The Author (2015). Published by Oxford University Press. All rights reserved.
Trusts & Trustees, Vol. 21, No. 7, September 2015, pp.
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deceases the testator, or if the secret trustee or
beneficiary attests the will—persist and have led to
ostensibly incompatible judicial decisions.2
This article submits that some, but not all, of the
aforementioned issues can be resolved by reconcep-
tualizing the fully-secret trust. Recall that a fully-
secret trust is used to hide the true recipient of a
testamentary disposition. The disposition appears to
be going to one person, but in reality it is held for
another. Thus, for instance, if X wishes to secretly give
his house to Z, he will make an outright gift in his
will, but not to Z. Instead, his will may provide, ‘My
house to Y.’ X then discreetly requests Y to hold the
house for his secret beneficiary, Z. So long as Y does
not reveal the secret, no one except Y and Z will ever
know that X wanted Z to have the house.
Conventional theories identify the testator (in our
example, X) as settlor and the moment of constitu-
tion3 of the trust as the time of the testator’s death.
The primary problem with these theories is that they
are not consistent with the proper distribution of the
testator’s estate. Returning to our example, upon X’s
death, his executor must distribute the house strictly
in accordance with the terms of the will. This means
distribution as a gift to Y (as a donee, not a trustee).
Traditional theories do not satisfactorily accommo-
date this requirement because the constitution—ie
the vesting of title in a trustee—occurs under these
theories at the time of X’s death. It is not possible,
under these theories, for the executor to distribute
the property as a gift, as expressly required by
the will. Moreover, distribution as trust property
doi:10.1093/tandt/ttv013
Advance Access publication 4 April 2015
Trusts & Trustees, Vol. 21, No. 7, September 2015
would require the executor to know of the secret
(which often is not the case), and additionally
would jeopardize the secret because the other benefi-
ciaries would, through an accounting of the estate,
come to know that the property was distributed in
trust.
Two conceptual adjustments can resolve this prob-
lem. First, the secret trustee, rather than the testator,
should be considered the settlor of the trust. Second,
upon the testator’s death, the property is distributed
consistent with the terms of the will to the secret
trustee as an outright gift. Upon receipt of the gift
by the secret trustee, by a mechanism explored in
detail below, the secret trust is constituted. These con-
ceptual adjustments—herein called the ‘post-death
trust theory’ because the constitution occurs neither
before nor upon the testator’s death, but some time
after it—resolve one of the most vexing problems of
fully-secret trusts: why they are enforced despite their
failure to comply with the writing and attestation re-
quirements of the Wills Act. Under the post-death
trust theory, fully-secret trusts are not testamentary
dispositions—and thus do not need to comply with
the Wills Act—because the secret trustee, rather than
the testator, is the settlor of the trust. As the secret
trustee (who is also the settlor) is not dead at the time
the trust becomes constituted and irrevocable, the
secret trust is not a testamentary disposition.
Basic concepts and traditional theories
Secret trusts are used because wills, once they are
submitted for probate, become public documents
subject to the prying eyes of others. A testator, for
one reason or another, may want to keep secret the
identity of a person receiving a testamentary gift. To
do so, she can create a secret trust. Secret trusts come
in two types: fully-secret trusts and half-secret trusts.
To create a fully-secret trust, a testator provides what
appears to be an outright gift in his or her will. The
4. S Atkins, Equity and Trusts (Routledge 2013) 302; Stickland v Aldridge (1804) 9 Ves Jr 516.
5. Atkins, ibid 302; Oosterhoff (n 2) 175.
6. Wills Act 1837 s IX.
Articles 803
testator communicates to the donee of the bequest
that the property should actually not be kept by the
donee, but instead should be held for or given to a
third party, the secret beneficiary. If the donee agrees,
a fully-secret trust has been created. To illustrate, a
will referring to a fully-secret trust could provide, ‘My
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stock in XYZ company to T’, where T appears to be
the recipient of a gift but would actually be the
trustee.
With a half-secret trust, the existence of the trust
and the identity of the trustee are described in the
will, but the identity of the beneficiary is omitted.
Thus it is ‘half’ secret. A half-secret trust could pro-
vide, ‘My stock in XYZ company to be held on trust
by T as I have communicated to him’. Upon seeing
the provision for a fully-secret trust, a reader of the
will would have no inkling that the stock is to be held
on trust, whereas a person seeing the half-secret trust
would know that the stock is to be held on trust and
who the trustee is, but would not know the identity of
the secret beneficiary.
Secret trusts were traditionally thought to be used
by men who wished to discreetly support mistresses
and children born out of wedlock or to conceal char-
itable gifts of land when they were prohibited.4 They
are also used, however, for tax savings or, in the case
of fully-secret trusts, to be able to change the benefi-
ciary after the execution of the will.5 The problem that
courts encountered was that the Wills Act requires all
testamentary dispositions be in writing, signed, and
witnessed.6 By secretly giving the information about
the trust to the intended trustee, often orally and
never with attesting witnesses, the testator was not
complying with these requirements. Secret trustees
who elected to break their promises and keep the
property for themselves could then use the failure to
comply with the Wills Act as a reason for courts to
refuse to enforce the trusts.
The enforcement of secret trusts, despite their os-
tensible infringement of the Wills Act, was originally
804 Articles Trusts & Trustees, Vol. 21, No. 7, September 2015

justified to prevent fraud.7 Under this ‘fraud theory’,
courts disregarded non-compliance with the statutes
to prevent trustees from inducing testators to give the
property by secret trust and then, once the testator
has died, invoking the statute to invalidate the trust
and retain the property.8 Lord Westbury of the House
carry out the intentions of the testator, not to prevent
fraud, and that the fraud theory ‘stemmed from a
time when . . . unconscionable behaviour was likely
to be punished without too much concern for the
legal logic’.13
The theory that is more widely accepted today is

of Lords articulated the fraud theory as follows:
The Court of Equity has, from a very early period,
decided that even an Act of Parliament shall not be
used as an instrument of fraud; and if in the machin-
ery of perpetrating a fraud an Act of Parliament inter-
venes, the Court of Equity, it is true, does not set aside
the Act of Parliament, but it fastens on the individual
who gets a title under that Act, and imposes upon him
a personal obligation, because he applies the Act as an
9
instrument for accomplishing a fraud.
Yet the fraud theory was incomplete and a number of
objections were raised against it. For instance, fraud is
not always involved, such as when an honest trustee
seeks the court’s advice on the existence of the trust.10
Additionally, a constructive trust (ie one inferred by
the court that obligates the intended trustee to hold
the property in trust) may arise even when there is no
fraudulent inducement at the time of the communi-
cation.11 The fraud theory also fails to adequately jus-
tify the enforcement of half-secret trusts, where there
is little risk of fraud because the trust’s existence is
made known in the will.12 C E F Rickett argues that
the real justification for enforcing secret trusts is to
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that secret trusts need not comply with the require-
ment of the Wills Act because they are made outside
and independently of the will.14 This ‘dehors the will’
theory provides that the secret trust is not created
by the will, but rather arises from the independ-
ent obligation accepted by the trustee. Lord
Westbury explained in Cullen v Attorney General for
Ireland that:
where there is a secret trust . . . the title of the party
claiming under the secret trust . . . is a title dehors the
will, which cannot be correctly termed testamentary.15
Yet, this theory has also been criticized. Patricia
Critchley argues, for instance, that while secret
trusts may be testamentary dispositions outside the
will, they are not outside the Wills Act because they
remain testamentary dispositions.16 The dehors theory
also fails to justify the enforcement of secret trusts of
land despite their non-compliance with the writing
requirement of sub-section 53(1)(b) of the Law of
Property Act 1925.17 Moreover, there has been little
agreement under this theory on whether the secret
trust, particularly the fully-secret trust, is express or
constructive.18

7. McCormick v Grogan (1869) LR 4 HL 82; Cullen v Attorney General for Ireland (1866) LR 1 HL 190; Blackwell v Blackwell [1929] All ER Rep 71; CEF Rickett,
‘Secret Trust or Moral Obligation?—A Question of Evidence’ (1979) 38(2) CLJ 260, 263.
8. Stickland (n 4); Wallgrave v Tebbs (1855) 2 K & J 313.
9. McCormick (n 7).
10. Oosterhoff (n 2) 188, citing Blackwell v Blackwell [1929] All ER Rep 71 and Re Boyes (1883) 26 Ch D 531.
11. Bannister v Bannister [1948] 2 All ER 133; J McGhee (ed), Snell’s Equity (32nd edn, Sweet & Maxwell 2010) 733–34.
12. JE Martin, Modern Equity (19th edn, Sweet & Maxwell 2012) 160; GW Allan, ‘The Secret Is Out There: Searching for the Legal Justification for the Doctrine
of Secret Trusts Through Analysis of the Case Law’ (2011) 40 Comm L World Rev 311, 311–12.
13. Rickett (n 7) 263.
14. Cullen (n 7) 198; Blackwell (n 7) 77.
15. Cullen (n 7) 196.
16. P Critchley, ‘Instruments of Fraud, Testamentary Dispositions, and the Doctrine of Secret Trusts’ (1999) 115 LQR 631, 641. See also Johnson (n 1) 190–91.
17. J Mowbray and others, Lewin on Trusts (18th edn, Sweet & Maxwell 2008) 78; D Hayton, P Matthews and C Mitchell (eds), Underhill and Hayton: Law
Relating to Trusts and Trustees (18th edn, LexisNexis 2010) 349. James Penner has pointed out that a secret trust is not completely independent of the will because
the trust fails if the will is defective. J Penner, The Law of Trusts (6th edn, OUP 2008) 158.
18. Johnson v Ball (1851) 5 De G & Sm, 64 E R 1029 (express); De La Rochefoucauld v Boustead [1895-9] All ER Rep Ext 1911, 1916 (express); DR Hodge, ‘Secret
Trusts: The Fraud Theory Revisited’ (1980) 44 Conv 341, 348 (express); Martin (n 12) 175 (express or constructive); LA Sheridan, ‘English and Irish Secret Trusts’
(1951) 67 LQR 314, 323 (constructive); Oosterhoff (n 2) 187 (constructive); R Burgess, ‘The Juridical Nature of Secret Trusts’ (1972) 23 N Ir Legal Q 263, 268–72
(constructive).
Trusts & Trustees, Vol. 21, No. 7, September 2015 Articles 805

Academicians generally agree that neither of these What makes a fully-secret trust different from other
theories is satisfactory.19 trusts is that it is a deception. Executors of wills that
contain fully-secret trusts (and the general public,
since wills become public documents) believe that
The fully-secret trust as a post-death the property to be conveyed is an outright gift when
trust it is really a gift subject to the condition that it be held

Constitution of the trust and vesting of the
beneficial interests
This article submits that—contrary to what academics
universally conclude20—the fully-secret trust is con-
stituted and the equitable interest vests in the secret
beneficiary at the time the property is distributed to
the secret trustee. This moment is neither during the
testator’s life nor upon death, but ‘post-death’. Even
the dehors theory recognizes that the death of the tes-
tator is an important link—a triggering point—be-
tween the will and the constitution of the trust.21
Under the theory introduced in this article, the link
is severed; not only is the fully-secret trust declared
outside the will—unlike in the dehors theory, it is also
constituted outside and without connection to the
will.22 The outright gift expressed in the will, rather
than the secret trust, is the true testamentary dispos-
ition. It does not infringe the safeguards of the Wills
Act because, as part of the will, it is in writing and
presumably has been signed and witnessed. Some of
the difficulty that academics have encountered in
determining whether a fully-secret trust is express or
constructive is caused by the trust’s failure to comply
with the formalities of the Wills Act.23 Under the
post-death trust theory, the fully-secret trust does
not infringe the Wills Act and thus may be considered
a valid express trust.
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in trust. This article submits that the executor trans-
fers—and must transfer—the subject matter of a
secret trust as an outright gift to the secret trustee.
This proposition becomes evident when the mechan-
ism of distribution is examined. To illustrate, if the
provision in the will that references a secret trust pro-
vides, ‘My car to my brother Y’, where Y is the secret
trustee, the executor will transfer the car to ‘Y’, and
not to ‘Y as Trustee’.24 For many (or perhaps most)
fully-secret trusts, the executor will not know that
what appears to be a gift is actually—at least accord-
ing to conventional theory—not a gift. Yet even if an
executor knew of the intention to create a secret
trust, or came to know of it after appointment, he
or she would still be obligated to effect the transfer
in strict accordance with the terms of the will.25 To
do otherwise would be a violation of executor duties
and outside the scope of the executor’s limited rights
to manage the testator’s property. The executor fur-
ther would not be able to submit evidence of the
secret trust in his defence.26 Additionally and more
practically, to transfer the property on trust would
defeat the testator’s original wishes by exposing the
secret because executors must be able to account to
the beneficiaries for all distributions.27 In an ac-
counting, beneficiaries would see that, contrary to
the terms of the will, property had been distributed
in trust.

19. R Pearce, J Stevens and W Barr, The Law of Trusts and Equitable Obligations (5th edn, OUP 2010) 258; C Webb and T Akkouh, Trusts Law (2nd edn, Palgrave
Macmillan 2011) s 614; B Perrins, ‘Secret Trusts: The Key to the Dehors?’ [1985] Conv 248, 257.
20. Pearce, ibid 262; D Kincaid, ‘The Tangled Web: The Relationship between a Secret Trust and the Will’ [2000] Conv 421, 426; Oosterhoff (n 2) 190; Johnson
(n 1) 192.
21. M Pawlowski and J Brown, ‘Constituting a Secret Trust by Estoppel’ [2004] Conv 388, 389; Kincaid, ibid 422.
22. The trust cannot become fully constituted, of course, until after the testator’s death, and in this manner it is in a sense tied to the will, though this connection
is not enough to convert it into a testamentary disposition.
23. A Hudson, Equity and Trusts (4th edn, Cavendish 2005) 212; Oosterhoff (n 2) 185-86.
24. Though the example chosen is a simple one, the same principles apply with more complex trust arrangements, such as a class gift with a power of
appointment.
25. N Casey and others, Wills, Probate and Estates (3rd edn, OUP 2012) 50; R Kerridge, Parry & Kerridge: The Law of Succession (12th edn, Sweet & Maxwell
2009) 570; JI Winegarten, R D’Costa and T Synak, Tristram and Coote’s Probate Practice (30th edn, LexisNexis 2006) 49–50.
26. Hudson (n 23) 194; B Perrins (n 19) 250.
27. Administration of Estates Act 1925 sub-s 25(b); Winegarten (n 25) 646.
806 Articles
An analysis of the secret beneficiary’s ability to
claim the property at different stages of the secret
trust illustrates this proposition. Where a trustee of
a fully-secret trust predeceases the settlor, courts and
legal scholars generally agree that the gift fails and the
trust will not be enforced.28 After all, the apparent
beneficiary of a gift has predeceased the testator, trig-
gering lapse (provided that the testator has not antici-
pated and provided for this possibility and no anti-
lapse statute applies). The executor will not distribute
the secret trust property to the secret trustee’s heirs or
to the secret trust beneficiary, but instead to the tes-
tator’s heirs (provided that the testator has not
amended the will in the interim). In the eyes of an
executor, the matter is a simple one: a beneficiary of a
bequest has predeceased the testator. The outcome
would be different, however, if the trustee dies be-
tween the time of the testator’s death and the time
of the transfer of the secret trust property to the trus-
tee. The executor would then distribute the property
to the secret trustee’s heirs29—but importantly, not to
the secret beneficiary. In the executor’s eyes, the secret
trustee appears to be a beneficiary of a gift who has
died after the testator. It would only be upon the
distribution to a live secret trustee that a secret bene-
ficiary’s interest would vest because, prior to that
moment, the trust has not been fully constituted
and is thus unenforceable by a volunteer.30
Accordingly, a fully-secret trust is best thought of as
being constituted some time after, not upon, the tes-
tator’s death.
At this point it is worth addressing the view, prob-
ably most eloquently argued by Patricia Critchley,
that a fully-secret trust is a testamentary disposition.31
Using the definition of a will as a starting point to
determine the essential elements of a testamentary
disposition, Critchley provides that a will is ‘a dispos-
ition of property . . . to take effect after [the testator’s]
28. Re Maddock [1902] 2 Ch 220, 251; Martin (n 12) 172.
29. R Madoff and others, Practical Guide to Estate Planning (CCH, Inc 2008) 3–6; S Smith, Taking the Mystery out of Estate Planning (iUniverse LLC 2013) 25; DJ
Hayton, Hayton & Marshall: Commentary and Cases on the Law of Trusts & Equitable Remedies (11th edn, Sweet & Maxwell 2001) 117.
30. In trust law, a ‘volunteer’ is someone who has not given consideration for property received.
31. Critchley (n 16).
32. ibid 636 quoting T Jarman, Treatise on Wills (8th edn, Sweet & Maxwell 1951).
33. ibid 639–40.
34. ibid 640.
Trusts & Trustees, Vol. 21, No. 7, September 2015
decease, and which in its own nature is ambulatory
and revocable during his life’.32 A provision in a will,
for instance, is clearly a testamentary disposition be-
cause (i) it takes effect after the testator’s death, (ii) it
is ambulatory (meaning that it remains indefinite and
ineffective until death) and (iii) it is revocable (mean-
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ing the testator can change it). Critchley concludes
that a fully-secret trust is both ambulatory and rev-
ocable. In responding to the argument that a fully-
secret trust is not revocable by the testator, she rea-
sons that even if a testator could not revoke a secret
trust directly, he could ‘definitely achieve the same
effect by revoking the will on which the secret trust
arrangement depends, or by making a will to divert
property which would otherwise come to the secret
trustee on intestacy’.33 Critchley adds that the secret
trustee’s ability to revoke the trust is arguably irrele-
vant because it is the testator, not the trustee, making
the disposition.34
Under the post-death trust theory, however, the
secret trustee is the one making the disposition at
issue. Viewed in this light, the secret trust cannot
be a testamentary disposition because it becomes
effective before, not after, the secret trustee’s
demise (provided, of course, that the secret trustee
did not agree to hold the property until her death).
Furthermore, the testator would not be able to
revoke the trust because it is only in the trustee’s
power, as declarant, to do so. While it is true that
the testator could do so indirectly by amending the
will, this ability surely does not transform a non-
testamentary disposition into a testamentary one.
Rather, it merely means that the testator has the
ability to defeat a non-testamentary disposition.
The will is a testamentary disposition—the bequest
contained in the will (and the entire will itself) is
revocable by the testator—but the trust declared
over the bequest by the trustee is neither. A more
Trusts & Trustees, Vol. 21, No. 7, September 2015
appropriate characterization of a fully-secret trust
would be an inter vivos35 disposition but, contrary
to traditional conceptions, inter vivos of the secret
trustee rather than of the testator.
The idea that the subject matter of a fully-secret
trust is a gift is not new. Legal scholars have charac-
terized it as a gift subject to a personal obligation to
hold it in trust.36 Lord Hatherley in McCormick v
Grogan observed that the secret trustee ‘apparently
may be held in law to take the whole interest’ with
the obligation to hold it in trust ‘fastened upon his
conscience.’37 Lord Buckmaster in Blackwell v
Blackwell called it a ‘fiduciary gift.’38 These character-
izations are not inconsistent with the post-death trust
theory but do not address the timing of the vesting of
beneficial interests and the changed identity of the
settlor. Under the post-death trust theory, the transfer
to the trustee is of the whole interest, but as explained
in the following part, the whole interest is converted
into trust property by the secret trustee’s own
action—his prior self-declaration—and not by his
conscience (or rather, his court-imposed conscience
in equity).
Alastair Hudson dismisses the possibility that the
subject matter can be distributed as a gift by citing the
well-established rule in Milroy v Lord39 that a court
will not use a trust to perfect what was intended to be
a gift.40 If the testator intended to give a gift but,
because it fails, the court construes it as distribution
of property in trust, the Milroy v Lord rule would be
violated. Under the post-death trust theory, however,
the trust is not being used to perfect a failed gift. The
gift is being made as it was intended. Upon receipt by
the trustee, the trust previously declared by the trustee
(as settlor) is constituted. This article will now turn to
35. A Latin term meaning ‘between the living’.
36. Oosterhoff (n 2) 185–88; Hayton (n 29) 117.
37. McCormick (n 9).
38. Blackwell (n 7) 73, 74, 77.
39. (1862) 4 De GF & J 264.
40. Hudson (n 23) 212.
41. Martin (n 12) 124; Hayton (n 29) 238.
42. Milroy (n 39).
43. The significance (or lack thereof) of the difference between a declaration of trust and a promise to create a trust within the context of the post-death trust
theory is discussed in the next part below.
44. Tito v Waddell (No 2) [1977] Ch 106, 211; Martin (n 12) 98.
45. G Virgo, The Principles of Equity & Trusts (OUP 2012) 79; Hayton, Matthews and Mitchell (n 17) 107.
Articles 807
the controversial proposal that the trustee, rather than
the testator, is settlor of the fully-secret trust.
Declaration of the trust
For a private express inter vivos trust to be valid it
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must be (i) declared and (ii) constituted.41 There are
two methods of constituting a trust: first, a settlor
declares herself trustee over property she owns, and
second, the settlor transfers property to a trustee.42
The conventional view of fully-secret trusts is that
they are of the second type. The testator acts as set-
tlor, declaring the trust when the terms are commu-
nicated to the secret trustee and transferring the
property to the trustee upon the death. In contrast,
under the theory advanced in this article, a fully-
secret trust is of the first type. Rather than the testator
declaring the trust, the secret trustee makes a self-
declaration of trust (or more accurately, promises to
create a trust with property she will own) when she
acquiesces to holding the property to be received
under the will on trust.43 This concept conflicts
with all prevailing secret trust theories, but the
author begs the indulgence of the reader to consider
this possibility.
A secret trustee would almost surely not say,
‘I promise that I will create a trust with the property
that I will be receiving as an outright gift’. But there
are no magic words needed to declare a trust.44 The
key is the intent of the settlor manifested in the lan-
guage used.45 Is a testator not saying, at the moment
of communication to the secret trustee, ‘I am giving
you a gift under my will. When you receive it, will you
agree not to keep it as a gift but to hold it on trust for
my secret friend?’ And by a simple nod, is the secret
808 Articles
trustee not expressing, ‘I am receiving a gift under the
will. When I get it, I will not keep it as a gift but I will
hold it on trust.’46
The idea that the trustee could be regarded as the
one who has made the declaration has been raised and
summarily dismissed by David Hodge.47 Hodge rea-
sons that, because silence alone can suffice as acqui-
escence in the context of a secret trust, the clear
evidence required of a trustee’s intention to create
an express trust would not exist.48 This article sug-
gests, respectfully, that Hodge misses an important
distinction between fully-secret and other types of ex-
press trusts: at the moment of declaration, a secret
trustee is responding to a request to create a trust,
while settlors of non-secret trusts are initiating a dec-
laration of trust. It is axiomatic that a settlor of an
ordinary express trust must use language—either
orally or in writing—that manifests her desire to es-
tablish a trust. Muttering unintelligibly, nodding, or
simply remaining silent obviously cannot suffice. One
would not even know whether the person is thinking
about trusts at all. This is starkly different, however,
from a person who has been asked to hold a gift on
trust. A simple nod or a ‘sure’, in fact, would be the
normal response. It would be unusual, and indeed
sound awkward, for a person—other than perhaps a
trust lawyer—to respond to the request by exclaim-
ing, ‘Yes, I agree to create a trust for X with the be-
quest that you intend to give me’. In a secret trust
situation, compared with a typical express trust, much
less evidence to prove a declaration (or even a prom-
ise to create a trust in the future) should be required.
The idea that a trust can be declared over a gift
raises novel—and challenging—conceptual questions.
Is not a transfer either a gift or a trust? Is there con-
ceptual space for something in the middle, where it is
both? And if it is possible, how can intention be deter-
mined? As noted earlier, both courts and scholars
46. Even silence by a secret trustee can be construed as agreement to hold the property on trust. Wallgrave (n 8). There is some legal authority that accepting a
request to hold property in trust can be construed to be a declaration of trust. Re Gardner (2) (n 20) 233.
47. Hodge (n 18) 347.
48. ibid.
49. Oosterhoof (n 2) 186.
50. Under the post-death trust theory, the concept changes slightly from Oosterhoff’s description. The transfer is made as a gift, but it is not equity that then
grips the transferee; rather, it is the transferee’s own self-declaration.
Trusts & Trustees, Vol. 21, No. 7, September 2015
have characterized the subject matter of a fully-secret
trust as a gift that must be held on trust. Recall that
in Blackwell v Blackwell, Lord Buckmaster called it
a ‘fiduciary gift’. Albert Oosterhoff explains that the
property is transferred as a gift under law, and then
equity intervenes to compel the transferee to hold it
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on trust:
Equity always operates in this way. It allows title to be
transferred in accordance with the common law or
statute, but then, if there is cause for equity to inter-
vene, it imposes a trust on the recipient of the
property.49
The notion that a gift can be made that must be held
on trust, therefore, has been contemplated before and,
though perhaps controversial, is clearly possible.50
Though to some extent we have tackled the concept
of a transfer as both gift and trust, divining the tes-
tator’s intention remains. One could argue that a gift
to be held on trust is simply a trust, and should be
treated that way, because the testator’s ultimate inten-
tion is that the property be held in trust; or in the
same vein, that the testator presumably means exactly
what he says to the secret trustee—that the property
be held in trust. But is that really all that the testator
has said? In making a fully-secret trust, the testator
has said two things: first, in the will, he has said that
the property is to be given as a gift; second, outside
the will, he has asked that the property be held in
trust. This combination is unique among trusts and
should not be ignored because it reflects a different
procedural intention, but the same ultimate intention,
as other trusts. To illustrate, compare the following
situations: (1) X owns a bank account and transfers
the entire account ‘To Y’, then subsequently asks Y to
hold the account on trust for Z; and (2) X owns a
bank account and transfers the account ‘To Y, as
Trusts & Trustees, Vol. 21, No. 7, September 2015
trustee of the Z Trust’. In the first scenario, Y would
have the right to refuse to hold the account for Z
because it was transferred as an outright gift, whereas
in the second, Y would have no such right. This is true
even if X’s intention at the commencement of both
scenarios was that Y ultimately hold the property in
trust. Scenario 1 is distinguishable, of course, from a
fully-secret trust where the request to hold the prop-
erty on trust is necessarily made prior to the transfer
of property. Yet the point is that in Scenario 1, the
transferor’s words clearly reflect an intention to make
a gift, even though what is in his mind may be dif-
ferent, and it is those words that are decisive in deter-
mining intention. I submit that, when the words
clearly and unambiguously create a gift, the subse-
quent conversation with the secret trustee to hold
the property on trust should not be construed to
change that meaning because it has not revoked the
previous disposition. Instead, the testator’s intention
should be construed to be exactly what was said:
first, that a gift should be made, and second, that
gift be held in trust.
Typically, of course, a settlor is a person who owns
the property, declares the trust, and intends by the
trust to benefit someone. This is not, however, neces-
sarily true. For instance, X could, with the intention
of benefitting his daughter, Y, request that his mother,
Z, put some of her assets in trust for Y. Here, X is the
person who originally intends to benefit Y, but Z is
clearly the settlor. There is no legal obstacle to a
person requesting another to create a trust, even
when no consideration is given. With a fully-secret
trust, the crucial fact that makes the trustee, rather
than the testator, the settlor is that the trustee will
receive the property as a gift and thus technically be
the owner of the property, at least in the executor’s
eyes, because the property is distributed by the execu-
tor as an outright transfer.
This is where the fully-secret trust again unearths
more fundamental issues of trust law. Ownership,
rather than intent to benefit someone, must be the
51. Diana Kincaid seems to contemplate this possibility when she queries whether the secret trustee could be considered a beneficiary because she ‘takes a
beneficial interest for a legal moment before the secret trust is imposed’. Kincaid (n 20) 424.
Articles 809
criterion to determine the identity of the settlor.
Although it is true that a testator may own the prop-
erty at the time of the communication with the secret
trustee, that ownership changes when the executor
distributes the property. Thus, a declaration of trust
by the testator would be void as ownership will
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change prior to constitution of the trust. To illustrate,
if X declares a certain property held in trust for Z with
Y as trustee, but then X changes his mind and gives
the property outright to W, the prior declaration
clearly becomes void. The property would not be
held on trust and X cannot settle the property
unless he becomes owner again. W, however, as
owner—and with a secret trust, the secret trustee is
in the same position as W—could very well declare a
trust over the property.
Distribution as a gift is what makes the fully-secret
trust singular, and why the principles of the post-death
theory do not apply, and should not be extended, to
other trusts. With all other trusts—half-secret, non-
secret testamentary and inter vivos trusts—the trust
property is transferred in trust to a trustee, not as a
gift. Thus, the suggestion that the post-death trust
theory, if accepted, could convert all trustees into self-
declaring settlors because theoretically all trustees could
be deemed to be agreeing to hold a gift in trust, is
misplaced. It is only with the fully-secret trust that the
property is transferred as an outright gift.
Transforming the gift into trust property
This part addresses how under the post-death trust
theory the property transforms from gift to trust. A
transfer (or more accurately, transformation) from
the secret trustee as donee of a gift to himself as
trustee of a trust, though it need not be formalized,
must occur conceptually. The theory advanced in this
article is that at the moment the property is trans-
ferred to the secret trustee, it becomes trust property
by virtue of the legal owner having previously pro-
mised or declared that it would be held on trust.51
810 Articles Trusts & Trustees, Vol. 21, No. 7, September 2015

As discussed above, one method by which a trust
may be formed is by an owner of property declaring
himself trustee of the property.52 There is no need for
any formal transfer as the trustee already owns legal
title. A settlor will typically own the property first and
then, at some subsequent moment, decide to declare
declaration of trust over future property or a promise
to settle future property and the property finds its way
into the hands of the trustee, it will automatically and
irrevocably be held on the trust previously declared or
promised.58 No further declaration or promise is ne-
cessary.59 Thus it is immaterial whether the trustee’s

the property held in trust. There are no insurmount-
able conceptual obstacles, however, to the reverse: a
declaration of trust preceding ownership of the prop-
erty and constitution of the trust.53
The conceptual wrinkle that arises if the trustee is
the settlor of the fully-secret trust—and David
Hodge’s second reason for rejecting the possibility
of the trustee as settlor—is that the trustee does not
own the property at the time of the communication
between the testator and trustee.54 The property at
that instant is future or ‘after-acquired’ property for
the trustee. Future property cannot be the subject
matter of a trust—at least without some further sub-
sequent manifestation of intention55—and thus a dec-
laration over that property by the trustee would
presumably be unenforceable.56 Furthermore, a set-
tlor may promise to hold after-acquired property on
trust (rather than declare it held on trust), but that
promise is not enforceable by volunteers such as the
secret beneficiary.57 How, then, does the trust become
enforceable?
As with the idea developed above that the settlor is
necessarily the owner of trust property rather than
merely the person intending to benefit another, the
fully-secret trust also tests another basic principle of
trust law relevant not just to secret trusts, but to all
trusts: the ability to covenant to settle—and then
revoke the covenant of—future property. This article
proposes—and case law supports—that in the context
of a fully-secret trust, when there is either a
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acquiescence is understood as a declaration over after-
acquired property or as a promise to create a trust
with future property. While under normal circum-
stances both would be unenforceable by volunteers,
under the post-death trust theory both are enforce-
able because the property has made its way into the
trustee’s hands, triggering the irreversible imposition
of the trust.
The theoretical underpinning of this theory—that
the secret trustee is immediately and irrevocably
bound to hold the property in trust at the
moment it is received because she has previously
declared a trust or promised to hold after-acquired
property in trust and because, as trustee, she has
come to hold legal title—merits discussion.
Applicable judgments, although not dealing with
secret trusts or with settlors who are also trustees,
indicate that once property is properly delivered to
the trustee of a trust that was either made upon
declaration of future property or covenanted upon
settlement of future property, the trust is completely
constituted. In Re Ellenborough,60 the settlor’s subse-
quent delivery to the trustees of after-acquired prop-
erty received under her sister’s will that she had
unsuccessfully purported to transfer earlier resulted
in that part of the trust being completely consti-
tuted, presumably because the transfer could be con-
strued as a further declaration.61 In Re Adlard, three
sisters who had covenanted to hold future property
in trust and then mistakenly believed that they were

52. Martin (n 12) 125; Hayton (n 29) 238.

53. Martin (n 12) 148.
54. This hurdle has been highlighted by other academics. Pawloski and Brown (n 21) 390; Hodge (n 18) 347.
55. Martin (n 12) 148; Re Northcliffe [1925] Ch 651, 654–55; Hayton (n 29) 250–51.
56. Re Ellenborough [1903] 1 Ch 697; Re Brooks’ Settlement Trusts [1939] 1 Ch 993; Re Adlard [1954] Ch 29.
57. Re Cook’s Settlement Trusts [1965] Ch 902.
58. Re Ellenborough (n 56); Re Adlard (n 56); Re Ralli’s Will Trusts [1964] Ch 288.
59. Even if the law required an additional declaration by the trustee, a recalcitrant trustee would likely be estopped in equity from refusing to hold the property
in trust. Pawloski and Brown (n 21) 391.
60. [1903] 1 Ch 697.
61. Martin (n 12) 147.
Trusts & Trustees, Vol. 21, No. 7, September 2015
required to transfer the property to the trustees were
unable to later revoke the transfers.62
In Re Ellenborough and Re Adlard, however, the
settlors delivered the property to the trustees, indicat-
ing an additional manifestation of intention to create
a trust. In contrast, in a fully-secret trust, the property
does not arrive from the settlor (the secret trustee)
but rather from the executor. When the property
comes to the trustee by some route other than from
the settlor, the enforceability of the trust may depend
on whether the settlor had an interest in the property
at the time of the declaration or covenant.63 In Re
Ralli’s Will Trusts, the settlor had a vested interest in
a reversion expectancy under her mother’s will at the
time that she (the daughter) made the covenant to
settle. The trustee of the settlement also happened to
be the trustee of the mother’s will. The settlor prede-
ceased her mother, which meant that the reversionary
interest would not be distributed to her (the daugh-
ter—in fact, the daughter’s estate) until her mother
subsequently died. At the time of distribution, the
interest came into the trustee’s possession, not as
trustee of the settlement but as trustee of the will.
The Chancery Division held, nonetheless, that the
trustee held the property on trust for the beneficiaries
of the settlement.64
In contrast, in Re Brooks’ Settlement Trusts, the
Chancery Division held that when a trustee comes
to receive the property by means other than from
the settlor, and at the time of the settlement the set-
tlor merely had a future expectancy, the trustee must
not hold the property subject to the settlement. There
were two settlement agreements in this case. The first
was a settlement created by the settlor’s father, in
which the settlor’s mother had a life interest and
power of appointment. The second settlement agree-
ment was the settlor’s, in which he voluntarily settled
62. Re Adlard (n 56).
63. Martin (n 12) 128–29.
64. Re Ralli’s Will Trusts (n 58) 302.
65. Re Brooks’ Settlement Trusts (n 56) 999.
66. [1939] 1 Ch 993.
67. Hayton (n 29) 254–56.
68. ibid.
69. [1964] Ch 288.
70. Hayton (n 29) 254–56.
Articles 811
his expected interest in the first trust. At the time of
his settlement, his interest was merely a speculative
future interest. The trustees of the settlor’s settlement
and the trust of which his mother was beneficiary
were the same bank. Subsequently, the settlor’s
mother appointed a sum to him. As the appointment
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created a new estate in favour of the settlor, the trus-
tees asked whether they had to hold the property sub-
ject to the settlor’s settlement or give the property to
the settlor outright. The Court held that the settlor
should receive the property outright as his prior
settlement—which had been made on future prop-
erty—did ‘not operate as a valid assignment or dec-
laration of trust’.65
Citing Re Brooks’ Settlement Trusts,66 David Hayton
makes a strong case for permitting a settlor to revoke
his covenant to settle when a trustee has fortuitously
received property without the settlor having been re-
sponsible for the vesting of title in the trustee.67
Hayton concedes, however, that the result would be
different if the settlor had authorized the trustee to
hold the property pursuant to the settlement or to
receive the property via a route other than the settle-
ment.68 Hayton also recognizes that the Chancery
Division in Re Ralli’s Will Trusts69 held otherwise,
although apparently without having had the benefit
of the decision in Re Brooks’ Settlement Trusts brought
to its attention.70
While one could argue that the distinction between
the two cases, Re Ralli’s Will Trusts and Re Brooks’
Settlement Trusts, was that in the former the settlor
had a present interest at the moment of the declar-
ation and in the latter there was merely a future inter-
est, the Court in Re Ralli’s Will Trusts did not use this
as a basis for its decision. Instead, it focused on
‘unconcientiousness’, reasoning that ‘it would be
unconscientious in [the trustee] to retain as against
812 Articles
[the volunteers under the settlement] any property
which he holds in consequence of the provisions of
the settlement’.71 On the other hand, ‘it is not uncon-
scientious in the [trustee] to withhold from [the set-
tlor’s] estate the fund which [the settlor] covenanted
that he should receive: on the contrary, it would have
been unconscientious in [the settlor] to seek to de-
prive the [trustee] of that fund’.72
How does the fully-secret trust fit into this maze of
judgments? This author is unaware of any judgments
in which a settlor of future property subsequently
receives that property, with himself as trustee, as a
result of having promised to hold it in trust. In all
of the cases discussed above, the settlors and the trus-
tees were different people and when the settlors
settled property based on a perceived obligation,
such as in Re Adlard, they were the ones who trans-
ferred the property, rather than the trustee receiving
by some other route.
Recall that what makes Re Ralli’s Will Trusts and Re
Brooks’ Settlement Trusts relevant is that, as with fully-
secret trusts, the after-acquired property (ie acquired
after the declaration of trust) in those cases arrived to
the trustee from someone other than the settlor and
other than subject to a trust. In Re Ralli’s Will Trusts it
arrived by a will as a distribution of estate assets and
in Re Brooks’ Settlement Trusts, it arrived by appoint-
ment. Similarly, with fully-secret trusts, the property
arrives from the testator’s estate as a gift rather than
from a settlor subject to a trust. The question then in
all three cases is whether the trustee must hold the
property pursuant to the instrument from which he is
receiving it (eg pursuant to the will as a gift) or pur-
suant to the trust he had earlier declared (ie pursuant
to the trust). Re Ralli’s Will Trusts held that it must be
held in accordance with the trust, while Re Brooks’
Settlement Trusts held the opposite.
If one views the essential distinction between these
cases as whether the settlor’s interest at the time of
declaration is future or present, then the secret trustee
71. Re Ralli’s Will Trusts (n 58) 302.
72. ibid.
73. (1870-71) LR 6 Ch App 597.
74. (1884) 27 ChD 394.
Trusts & Trustees, Vol. 21, No. 7, September 2015
would not have to hold the property in trust. If, how-
ever, one considers the ‘unconcientiousness’ empha-
sized in Re Ralli’s Will Trusts as the key, then a secret
trustee would clearly be bound to hold the property
for the secret beneficiaries. Though these cases are
similar in some important ways to fully-secret
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trusts, a significant difference supports the argument
that the unconscientiousness standard of Re Ralli’s
Will Trusts should apply to fully-secret trusts. The
difference is that in Re Ralli’s Will Trusts and Re
Brooks’ Settlement Trusts, the property reached the
trustees fortuitously (by chance, the trustees of the
wills and trusts happened to be the same entity),
while with fully-secret trusts, the testator and secret
trustee specifically and expressly intend that it reaches
the trustee. A fully-secret trust is deliberate, planned,
and foreseeable. In fact, the secret trustee has, by
acquiescing to hold the property on trust, induced
the testator to leave the property as they have
planned. Thus, while in a fortuitous situation the out-
come may be debatable, in the special context of fully-
secret trusts, where there are clear elements of induce-
ment and reliance, this article suggests that uncon-
scientiousness is the proper standard by which to
determine a trustee’s ability to retain the property
for himself.
A possible objection to this analysis is that under
the post-death trust theory there is no unconscien-
tiousness and no fraud because the property is trans-
ferred as a gift, giving the secret trustee complete
freedom to use it how she wishes. Comparisons may
be made to cases like Lamb v Eames73 or Re Adams
and the Kensington Vestry,74 in which precatory lan-
guage like ‘to be at her disposal in any way she may
think best’ or ‘to the absolute use of my dear
wife . . . in full confidence that she will do what is
right as to the disposal thereof between my children’,
was held to be merely expressions of hope or desire,
and thus insufficient to show certainty of intention
to create a trust. But these cases are clearly
Trusts & Trustees, Vol. 21, No. 7, September 2015
distinguishable from the gift made to the secret trus-
tee. The testator of a fully-secret trust does not ‘hope’
that the trustee holds the property in trust, nor does
he give the trustee freedom to use the property ‘in any
way she may think best’. Instead, the testator transfers
a gift with a clear and definite promise from the trus-
tee that the gift will be held on trust. With a conven-
tional trust, the testator does not need this promise
because the trust itself binds the trustee to the trust
obligations. The trustee has no choice, and thus need
not make any promise. With a fully-secret trust, in
contrast, because the will provides for an outright gift,
the testator must seek and obtain the trustee’s prom-
ise. This distinguishes the fully-secret trust from all
other trusts.
To summarize, the secret trustee declares/promises
to create a trust when she assents to the testator’s
request. At that time, it is a future speculative interest
for the trustee because the testator can revoke the
bequest. Upon receipt of the property as a gift, the
trustee becomes the outright owner. When an owner
of property has declared the property to be held on
trust, no transfer of legal title is necessary, but a dec-
laration made over future property is unenforceable
absent some subsequent manifestation of intent. This
article proposes that, because the trustee of a fully-
secret trust comes into possession of the property in a
manner consistent with the settlor’s (his own) previ-
ously declared wishes and expectations which were
established at the time of communication with the
testator, and because it would be ‘unconscientious’
for the trustee to break his promise and deprive the
secret beneficiaries of the property, it must be held
subject to the trust.
Applying the post-death trust theory
to practical problems
A number of practical problems have arisen as a result
of the duplicitous nature of fully-secret trusts. As just
75. [1923] 2 Ch 523.
76. Although Re Gardner (2) has been almost universally questioned, it remains the relevant authority. Kincaid (n 20) 431.
77. ibid; Martin (n 12) 173; Oosterhoff (n 2) 190.
78. Vandervell v IRC [1967] 2 AC 291.
Articles 813
one example, if the secret trustee predeceases the tes-
tator, should the court treat the decedent as a bene-
ficiary or trustee? The answer to this question, as well
as others, determines whether the disposition fails or
survives. Authorities go both ways. This section of the
article explains how the post-death trust theory would
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apply to some of these problems.
When the secret beneficiary or secret trustee
predeceases the testator
Generally, when a beneficiary under a will predeceases
the testator, the gift lapses to the estate. The prevailing
authority on what happens when a secret beneficiary
predeceases the testator is Re Gardner (No. 2),75
in which the Chancery Division held that the
gift would not lapse.76 The Court appears to have
held that the trust becomes effective, and the deceased
beneficiary’s interest vests, upon the testator’s declar-
ation of trust and secret trustee’s acquiescence.
The court’s authorities for and explanation of the
decision were rather scant, though, and the judgment
has been roundly criticized because beneficial
interests cannot arise in a secret trust before the con-
stitution of the trust upon (or after) the testator’s
death.77
Analysis of this issue under the post-death trust
theory would be consistent with, but slightly different
from, the criticism of Re Gardner (No. 2). If the tes-
tator does not amend the will after learning of the
beneficiary’s death, the property would be distributed
outright upon the testator’s demise to the secret trus-
tee and, upon receipt, would automatically be con-
verted into trust property. Without a beneficiary, the
property would be held by the secret trustee on re-
sulting trust for the testator’s heirs.78
In contrast, when a trustee of a testamentary trust
predeceases the testator, the trust generally survives
because the trustee can be replaced without defeating
the testator’s intention. The Court of Appeal observed
814 Articles Trusts & Trustees, Vol. 21, No. 7, September 2015

in dictum that when a secret trustee predeceases the
testator, the gift lapses,79 apparently because on the
face of the will a beneficiary (not a trustee) appears to
have predeceased the testator. Dictum by the House of
Lords, on the other hand, has implied that although
technically the gift would lapse, a court would inter-
prevent, or at least discourage, the trustee from attest-
ing the will, but if she does attest and the gift is later
challenged on this ground, there is no compelling
reason why the challenge should prevail.
A similar analysis applies to a secret beneficiary at-
testing the will. In Re Young,84 the Chancery Division

fere to prevent the failure,80 presumably because
equity will not allow a trust to fail for want of a
trustee.81
Under the post-death trust theory, the gift should
lapse because a distribution of the property by the
executor to a different donee would contravene the
express terms of the will. As noted though, courts may
see fit to intervene to save the trust.
When the secret trustee or secret beneficiary
attests the will
Under the Wills Act, gifts to beneficiaries who attest
the will are void.82 Accordingly, attestation by a secret
trustee, who on the face of the will appears to be a
beneficiary, invalidates the gift.83 It would be surpris-
ing if the result were otherwise. A lawyer assisting in
the will attestation who noticed that the secret trustee
was also witnessing the will would justifiably warn
against it. If the testator were to not reveal the
terms of the secret trust to the secret trustee until
after the execution of the will, this result would be
eminently logical. However, in a situation where the
terms have been communicated before the execution
of the will, the trustee should be able to attest the will
as she knows that the property will eventually be held
for another. One could argue that no one but the
trustee knows this, and thus others could justifiably
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held that a secret beneficiary can attest a will without
invalidating the gift because her beneficial interest is
completely unconnected to the will. Again, this makes
sense if the secret beneficiary and secret trustee do not
know of their true roles. But if the settlor has in-
formed them both, which is perfectly acceptable and
in no way invalidates the secret trust, surely, the
knowing secret beneficiary is no less interested or
biased—and thus susceptible to the temptation to
unduly influence the testator—than an apparent
beneficiary of a non-secret trust.85
Following current English law, under the post-
death trust theory a knowing beneficiary of a fully-
secret trust should be able to attest the will without
jeopardizing the gift to the secret trustee and the con-
tingent beneficial interest that the beneficiary expects
to enjoy. After all, the gift in the will is technically an
outright testamentary bequest and the trust is com-
pletely independent of the will. Similarly, the secret
trustee’s attestation would invalidate the gift.86 Yet
perhaps a better and more nuanced analysis would
be for the effect of attestation by secret trustees and
beneficiaries to be determined based on their know-
ledge of their interests at the time of attestation. A gift
to an attesting secret trustee would be presumed void
unless the secret trustee could prove that she knew at
the time of attestation that the gift would be subject
to the secret trust, and a secret beneficiary’s interest

79. Re Maddock (n 28) 231. Penner (n 17) 177 asserts that there are no cases that have decided what would happen if a secret trustee predeceased the testator or
disclaimed the gift. But see Earl of Inchiquin v French (1745) 1 Cox 1, 29 ER 1034, in which the Court of Chancery, without explanation, held that the predeceasing
of a fully secret trustee did not cause the legacy to lapse. Perhaps it was significant that the deed poll by which the communication of the trust terms was made,
although not proven as a testamentary paper, was executed at the same time as the will and in the presence of two witnesses.
80. Blackwell (n 7) 74.
81. Kincaid (n 20) 440.
82. Wills Act 1837 s 15; Succession Law Reform Act sub-s 12(1), RSO 1990, c S26. This provision discourages the conflicts of interest that arise when one with a
financial interest in the will also attests it.
83. Re Maddock (n 28) 231. But see Re Armstrong (1969) 7 DLR (3d) 36, where the Nova Scotia Supreme Court held that a secret trustee’s attestation would not
invalidate the gift to the extent that it was to be held in trust for others.
84. Re Young [1951] Ch 344, 350.
85. Hayton (n 29) 116.
86. See also Pearce (n 19) 257 (suggesting that the dicta in Blackwell rather than the dicta in Re Maddock should be followed because the beneficiary’s interest
vests at the time of the testator’s death).
Trusts & Trustees, Vol. 21, No. 7, September 2015
should be presumed valid unless the testator’s heirs
could prove that the beneficiary knew at the time of
attestation that the gift would be subject to the secret
trust. Ultimately, the testator can avoid these difficul-
ties of concept and evidence by simply selecting wit-
nesses other than the secret trustee and beneficiary to
attest the will.
When the subject matter is land
While the dehors the will theory—with some dissen-
sion among academics—helps to a certain extent to
address why secret trusts need not comply with the
requirements of the Wills Act, and the post-death
trust theory completely severs the trust from the
will, neither theory adequately addresses the enforce-
ment of secret trusts that contravene sub-section
53(1)(b) of the Law of Property Act 1925, which re-
quires that all declarations of trusts of land—whether
testamentary or not—be evidenced by writing. This
section provides:
[A] declaration of trust respecting any land or any
interest therein must be manifested and proved by
some writing signed by some person who is able to
declare such trust or by his will.
The original purpose of requiring land transactions
to be manifested and proved by some writing was to
prevent fraud.87 Other purposes, such as increasing
certainty, protecting consumers, making ownership
manifest and encouraging care have also emerged.88
Yet courts regularly uphold oral secret trusts whose
subject matter is land despite their failure to comply
with sub-section 53(1)(b).89 The equitable concept
of the constructive trust has sometimes been
used to skirt this problem, as constructive trusts
need not comply with statutory formalities such as
87. E Cooke, Land Law (2nd edn, OUP 2012) 74.
88. B McFarlane, N Hopkins and S Nield, Land Law: Text, Cases, and Materials (2nd edn, OUP 2012) 192–94.
89. See, eg Ottaway v Norman [1971] 3 All ER 1325.
90. Law of Property Act 1925 sub-s 53(2).
91. Penner (n 17) 156.
92. ibid 157.
93. Rochefoucauld (n 18).
Articles 815
the requirements of the Wills Act or the Law of
Property Act.90
Under the post-death trust theory, a trust whose
subject matter is land would still usually be declared
orally (although by the trustee) and without proof in
writing, and thus would technically fail to comply
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with the Law of Property Act. The trust would not
be void, but merely not provable in a court of law and
thus not normally enforceable against the trustee.91
The complexity of the analysis increases under the
post-death trust theory because the fully-secret trust
is made through a self-declaration in which the
owner/settlor and trustee are the same person.
Clearly, a trustee is not able to defraud himself,92
and if he kept the land for himself he could not be
said to be defrauding the secret beneficiary, to whom
he has made no promises.
The seminal case De La Rochefoucauld v Boustead93
sheds some light on how courts could approach the
enforcement of oral trusts of land in which the settlor
and trustee are the same person. Rochefoucauld, the
niece of a baron, inherited a coffee estate encumbered
by a mortgage. She claimed that after the estate was
put up for sale by the mortgagee, she agreed with
Boustead that he would purchase the estate, hold it
in trust for her, and release it to her when she reim-
bursed him for the purchase price and his expenses.
Instead, Boustead sold the estate, claiming it had been
conveyed to him as beneficial owner. There was no
contemporaneous written evidence of the trust agree-
ment but the Court of Appeal was clearly persuaded
by the nature of the transaction and other testimony
and evidence that Boustead had received the property
subject to a trust in favour of Rochefoucauld. The
Court enforced the trust to prevent the statute from
being used to perpetrate fraud.
Technically, the case involved a self-declaration of
an express trust. On the transfer document from the
816 Articles
mortgagee, Boustead must have appeared as the out-
right beneficial owner because Rochefoucauld kept
her name off all formal documents to prevent her ex-
husband from discovering her interest in the estate. And
if the transfer had been made to Boustead ‘as trustee’,
there would be little dispute as to the nature of his
ownership. In some ways, the trust was similar to a
fully-secret trust in that Boustead promised that once
he received the estate he would, as beneficial owner,
hold the property in trust with himself as trustee. As
such, he was both settlor and trustee.
Though the Court of Appeal in Rochefoucauld
enforced the self-declared oral express trust of
land, there were important differences from what
would normally transpire with a typical fully-secret
trust. In Rochefoucauld, there appears to have been
written parol evidence that ‘proved that the estates
in question were conveyed . . . upon trust’ and there
was evidence that the trustee had been giving effect
to the trust, or at least that he refrained from repu-
diating Rochefoucauld’s claims, leading to potential
reliance by the trust beneficiary.94 With a typical
fully-secret trust, there would generally be no written
parol evidence and no reliance by the secret benefi-
ciary, who would often not even be aware of the
trust.
Would these differences lead a court applying the
post-death trust theory to a different conclusion
than the Rochefoucauld court or courts that have
upheld secret trusts under the conventional theories?
Probably not. The court in Rochefoucauld reasoned
that ‘it is fraud on the part of a person to whom
land is conveyed as a trustee, and who knows it was
so conveyed, to deny the trust and claim the land
himself’.95 Though under the post-death trust theory
the secret trustee technically receives the property
not as trustee but as donee, the property is imme-
diately converted to trust property, thus making a
denial of the trust just as fraudulent as if it were
transferred in trust. Moreover, the fact that the
fully-secret trust involves a self-declaration appears
94. ibid 1916, 1918; Penner (n 17) 157.
95. ibid 1915.
Trusts & Trustees, Vol. 21, No. 7, September 2015
unimportant in this context because the statute re-
quires that the declaration, not the transfer, be evi-
denced by a writing made by the person able to
declare the trust—here the secret trustee. There is
no exception from this requirement for self-declar-
ations. Finally, while it is true that a trustee of a
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fully-secret trust cannot defraud himself, he could
defraud the testator. Under the post-death trust
theory, the settlor whose declaration of trust did
not observe the statutory formalities is the same
person who would be relying on the statute to in-
validate the trust. Such a situation, where addition-
ally the settlor has promised to hold the land in trust
and the testator has relied on that promise in
making the bequest, may be an appropriate one
for equity to intervene.
The analysis may be different in the case of dis-
claimer, discussed in detail in the next section. It is
doubtful that in Rochefoucauld the court would have
forced Boustead to purchase the estate if he changed
his mind after agreeing with Rochefoucauld but
before the actual purchase. Similarly, in the case of
a fully-secret trust, obliging the secret trustee to
accept the distribution (as opposed to holding it in
trust after acceptance) may be stretching the reach of
equity too far.
It is worth emphasizing at this point that the major
benefit of the reconceptualization of the fully-secret
trust proposed herein is that it solves the problem of
non-compliance with the Wills Act. It is not, however,
able to answer the difficult policy questions inherent
in deciding whether equity should intervene to sal-
vage trusts that fail to comply with the Law of
Property Act (or, as discussed below, to prevent the
secret trustee from disclaiming or revoking his prom-
ise). Ultimately, these are questions which call for the
weighing of, on one hand, the important benefits of
requiring land transactions to be evidenced by writing
and, on the other hand, allowing settlors freedom to
transfer property as they desire, with all the risks that
entails.
Trusts & Trustees, Vol. 21, No. 7, September 2015 Articles 817

When the trustee disclaims the property or
revokes the declaration
Due to the conceptual change in the timing of the
constitution of the trust and vesting of the benefi-
ciary’s interest under the post-death theory, there is
outright revocation by the secret trustee. Traditional
theories provide that the testator is the settlor of a
secret trust, and therefore is the person who has the
power to revoke the declaration of trust. The post-
death trust theory shifts this key role to the secret
trustee. As a result, a new danger arises: the secret

a period in which the secret trustee can sabotage the
trust, albeit usually not to her personal benefit. This
period, between the testator’s death and the time of
the transfer of the gift to the trustee, is when dis-
claimer can occur.
Disclaimer takes place when a beneficiary declines to
receive a bequest. It occurs after the testator’s death but
before the beneficiary has enjoyed any benefits of the
inheritance.96 A beneficiary who disclaims is treated as if
he predeceased the testator.97 In 1902, the Court of
Appeal noted in dictum that in the event of disclaimer,
the secret trust would fail, while in 1929, the House of
Lords opined that a court would not allow the trust to
fail because the disclaimer would amount to fraud.98
Under the post-death trust theory, the secret trustee
should be able to disclaim because at the moment of
disclaimer, the secret trustee is the anticipated recipi-
ent of an outright gift. Though the secret trustee has
either made a declaration of trust or a promise to
create a trust, the trust has not become fully consti-
tuted. There is no technical obstacle to disclaiming. A
problem arises where the trustee colludes with the
testator’s heirs, intentionally shifting the benefit
from the intended secret beneficiaries to the testator’s
heirs, perhaps pursuant to some quid pro quo. The
trustee may also be a residuary legatee, which would
result in personal benefit from a disclaimer.99 Some
suggest that equity would intervene to prevent such
an unconscionable result.100
The time between the testator’s death and distribu-
tion of the bequest is also particularly vulnerable to
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trustee has the power to revoke the declaration of
trust, which would completely dissolve the trust, leav-
ing the trustee to benefit from the intact gift.
Conceptually, this is slightly different from traditional
theories, where the trustee can either revoke his
promise to hold the property in trust or renounce
his trusteeship. In either of these cases, a court
could justifiably determine that the trust declaration
remained valid and the appointment of a new trustee
would remedy the problem. Under the post-death
trust theory, however, revocation by the trustee
would mean that there would be no incomplete
trust to mend. Prior to the testator’s death, this
danger is minimised by the testator’s ability to
amend the will, but during the time period near her
death and until the property is distributed by the ex-
ecutor, the trustee’s ability to revoke his prior declar-
ation or promise to settle is essentially without
hindrance, at least under law.
Disclaimer and revocation are perhaps the Achilles
heels of the post-death trust theory. By eliminating to
a large extent the control of the testator over the cre-
ation of the trust and shifting it to the secret trustee,
the theory also allocates to the trustee the ability to
undo the trust. There is an important difference be-
tween the two, however, that would arguably permit
disclaimer but not revocation: disclaimer relates to a
gift, while revocation relates to a trust. As the donee
of the gift in the will, the secret trustee has no power
to disclaim until the testator’s death, as the gift re-
mains revocable by the testator until that time. Upon

96. Re Smith [2001] 3 All ER 552; Re Hodge [1940] Ch 260; Kerridge (n 25) 344–45.
97. Kerridge (n 25) 345; JR Martyn and N Caddick, Williams, Mortimer and Sunnucks: Executors, Administrators and Probate (19th edn, Sweet & Maxwell 2008)
1040.
98. Re Maddock (n 28) 231; Blackwell (n 7) 74. In Blackwell, Lord Buckmaster did not specifically say that it is the fraud that would prompt the court to prevent
the failure of the trust, but the statement was clearly made within the context of a discussion of fraud. That a court would not permit the trust to fail could also be
construed to mean that a court will not permit a trust to be defeated for want of a trustee.
99. Fraud may be perpetrated even in the absence of some personal benefit. Re Dale (Deceased) [1994] Ch 31.
100. Kincaid (n 20) 441. Kincaid also raises the problem of a trustee renouncing the trusteeship prior to the testator’s death, particularly when the testator does
not have the time—for instance if on his deathbed—to amend the will. She suggests that a new trustee would be appointed.
818 Articles
and after the testator’s death, the trustee must notify
the executor of his intention to disclaim prior to dis-
tribution of the property. Again, from the perspective
of the executor, a beneficiary is disclaiming. No red
flag would be raised.
On the other hand, revocation involves rescinding
the declaration of trust upon which the testator has
relied. Under any of the theories—the fraud theory,
the dehors the will theory or the post-death trust
theory—the secret trustee would be obligated to
notify the testator if, during the testator’s life, the
trustee wished to withdraw. Failure to do so would
imply continued acceptance and bind the trustee to
her promise. If after the death of the testator, the
secret trustee wished to withdraw, and in the case of
the post-death trust theory, revoke, similarly the trus-
tee would have to notify the executor of this change of
heart. To remain silent would arguably imply contin-
ued acceptance, even under the post-death trust
theory where the trustee is both settlor and trustee.
The author has not found any legal authority address-
ing the limitations on or requirements for revocation
by a self-declaring settlor/trustee who has declared a
trust at the request of another. A strong argument can
be made, though, that if the owner of property is
transferring the property with the expectation that it
be held in trust, and the transferee knows this and has
in fact induced the transfer, it is not enough to effect
revocation for the transferee to simply and silently
think to himself, ‘‘I change my mind.’’ Once the
This article was completed while Stewart Manley was a Specialist at the Faculty of Law, Multimedia University,
Melaka, Malaysia. E-mail: smanley5@gmail.com.
Trusts & Trustees, Vol. 21, No. 7, September 2015
secret trustee has notified the executor of the revoca-
tion, a red flag would be raised and then, armed
with the knowledge of the existence of the trust, the
executor could request that the court appoint a new
trustee.
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Conclusion
Since its beginning, the fully-secret trust has been
conceived as a trust declared by the testator and con-
stituted upon the testator’s death. These are logical
characterizations consistent with the conceptualiza-
tion of ordinary testamentary trusts. This article
sought to question these presumptions based on the
unique nature of the fully-secret trust. By giving an
outright gift in the will, the testator causes the nature
of the transfer of property to change from what or-
dinarily would be a transfer to a trustee to what be-
comes a transfer to a donee. As a result of this change,
the trustee rather than the testator must be the person
who creates the trust because the trustee becomes
owner of the property, and only an owner can declare
a trust over property.
The post-death trust theory is not the solution to all
the complicated questions that arise from the use of
fully-secret trusts, but in providing a new way of con-
ceptualizing this historically thorny concept, the
theory is able to resolve some of these questions with-
out forfeiting the protection that testators have come
to expect.