The aforementioned assertion posits that the concept of secret trust

enables the testator to contravene the provisions of the will. This

essay aims to scrutinize the stipulations of the will (S.9, 20, and 15)
and assess whether secret trust genuinely disregards said sections.
The paper posits that sections are being neglected, and as such, this
essay will elucidate the rationale behind courts' justification for such
an action.
The concept of a secret trust has been a subject of concern due to the
requirement of presenting evidence that contradicts Section 9 of the
Wills Act 1837. This section mandates that the Will must be in written
form, signed by the testator, and witnessed by two or more individuals,
and is applicable to both testamentary gifts and trusts.
The stipulation has been expounded upon in (Lim v Thompson),
indicating that "the Will must have been directly created in written
form, rather than simply being represented by written evidence."
The court regards this stipulation as an evidentiary prerequisite,
whereby it scrutinizes the validation of a secret trust that fails to
adhere to requirements (which will be elaborated upon in this essay).
It is commonly contended that Section 9 should be approached in
conjunction with Section 1.
A further section that this essay endeavors to elucidate pertains to the
violation of S.20 by secret trusts. This section mandates that any codic
il, which involves modifications to the Will, must be documented in sig
ned writing. Consequently, altering the beneficiary under a trust neces
sitates the presence of signed writing.
According to Section 15, if a beneficiary or their spouse acts as a witn
ess, the Will would be deemed void.
This essay will explain how secret trust violated all three Will provision
s. Secret trusts might be fully or half-secret.
In a fully secret trust, the Will does not mention the trust duty, therefor
e the trustee holds the property on trust for the recipient. In a half-
secret trust, the beneficiary is not the Will's beneficiary, but the Will do
es not specify.
Thus, the court will proceed against S.9 of the Wills Acts 1837 by per
mitting non-conforming evidence to enforce the secret trust requireme
nt. If a half-secret trust is not enforced by not admitting non-
conforming evidence, the Will's property would be kept on
resulting trust for the testator's estate due to lack of beneficiaries (unc
ertainty of objects).
The legatee keeps the property in a wholly secret trust.
However, courts use non-conforming evidence to enforce the secret tr
ust for two reasons, going against S.9.
With regard to the fraud theory “Equity will not allow a statute enacted
to prevent fraud to be used as an instrument of fraud,” . In McCormick
v Grogan, "fraud" meant the legatee's breach of the testator's
agreement. The court broadened the meaning of deceptive
inducement to secure a transfer in one's favor.
Kay J's comment suggests that the secret trust may have been
forced to prevent trustee fraud.
Critchley criticized the theory of fraud for its circular reasoning and the
extended interpretation for emphasizing the possibility of wrongdoing
rather than its actual wrongdoing. similarly Penner believes that failing
to enforce the ST is dishonest, but failing to attest a Will document by
a human legatee is not.despite both have same outcome
furthermore, The definition of fraud does not fully embrace half-secret
trusts. In such trusts, the trustee's obligations are stated in the Will,
but not in detail, preventing the trustee from keeping the trust property.
In Blackwell v. Blackwell, the court expanded the concept that fraud is
a fraud on secret beneficiary.
The Dehors the Will theory, commonly known as the outside the Will t
heory, was the second justification in Cullen v AG of Ireland and
followed in Blackwell v Blackwell.
According to the above theory, the Trust is constituted independently
of the Will, making the Will Act inapplicable.
Viscount Sumner, Blackwell v Blackwell,
well that is not typically required of a trust. This, however, is regarded
as the'modern' method for admitting non-conforming evidence to
prove the existence of a secret trust.
Critics also slammed this theory.
According to Amanda Taylor, the trust is an intervivos trust because it
exists outside the Will.
In Milroy v. Lord, a trust must be perfected to be valid.
The trust's constitution will be established after the testator's death, m
aking it imperfect and cant be considered as valid interrvivos trust.
The second critique pertains to established in Paul v Constance,
states that in express trust, the settlor is bound by their promise and
cannot retract it. However, in secret trust, the settlor can. SO, it can be
said that secret trusts may not be valid form of express trusts.

Upon examining the justifications of fraud and Dehors theory, it is evid

ent that they have been subject to significant criticism due to their inhe
rent flaws. Nonetheless, they continue to be used as a means of admit
ting non-conforming evidence, thereby rendering Section 9 of the Will
Act entirely redundant. Consequently, it can be contended that the ap
plication of both fully secret trusts and half secret trusts effectively nulli
fies the applicability of Section 9.
FURTHER THE PROVISUIN UNDER DISCUSSION IS Section 20
requires written and signed codicils. In Moss v. Copper, the court
allowed the communication and acceptance of a fully signed and
witnessed Will before the testator's death. this implies that testator
can change their Will without meeting Section 20's requirements. THe
rationale for this is based on revocability, According to RE Gardner,
the Will's revocability allows the testator to select a new trustee before
their death.
according to Re Keen, established that half-secret trustees must
communicate and accept before or during Will creation. In Blackwell,
Lord Sumner ruled that a testator cannot retain the power to execute
unwitnessed dispositions.
Other jurisdictions, such (Re browne) and (Ledgerwood v Perpetual),
do not adhere to the idea of having different standards for fully and hal
f ST, and instead hold that the trustee may make an un-witnessed dis
position at any time.
HOWEVER, that's not English case, therefore we'd stick to the principl
e of treating full and half ST differently.
Therefore, it could possibly put forward that S.20 has been made fully
renderable in the case of a Fully ST, but was still preserved in the situ
ation of a Half ST.
Afterwards as we look into S.15, we need to talk about two legal
AREA: trustee and beneficiary witnesses.
A secret beneficiary may witness a trust, whether it is a full or
HALF secret trust, according to the case of
re Young, as long as the beneficiary is not receiving property under th
e Will in any scenario.
In contrast, according to (Re Young), a Secret trustee can witness an
entirely ST but not a Half ST. In a fully ST, the wording of the Will
indicates that the property must pass to the trustee, whereas in a half
ST, the wording of the Will indicates that the property is for someone
other than the secret trustee.
Thus, it can be argued that the S.15 has also been rendered null and
void by this application, as now the beneficiary who receives the
property can witness the property, whereas in the case of a trustee, he
cannot witness the Will document unless it is explicitly stated that the
property is not intended for him.
The paper concludes that the Sections of Will Act (9, 15, and 20) have
been rendered wholly ineffective by the application of ST.