The Secret is Out There: Searching for Legal Justification of Secret Trusts PDF

The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) 1 September 2011 Common Law World Review > 2011, Volume 4...

The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) 1 September 2011 Common Law World Review > 2011, Volume 40 > Issue 4, September > Articles Common Law World Review The Secret is Out There G.W. Allan1 Senior Lecturer, University of Wolverhampton; e-mail: [email protected]. © Vathek Publishing 2011 Abstract: The doctrine of secret trusts, which appears to operate in defiance of the statutory formality requirements for testamentary dispositions, has proven notoriously difficult to justify, and an explanation reconciling the main authorities has consistently eluded commentators. Many of the academic opinions rely on widely accepted interpretations of a small number of authorities that have been designated as leading cases. The doctrine has, however, generated a substantial amount of case law, much of which is rarely or never cited in the literature. This paper seeks to provide a justification for the doctrine that is based on a thorough analysis of all of the available case law. It is argued that, once understood in their proper context, virtually all of the authorities can be reconciled with one another, and that a coherent justification for the enforcement of secret trusts can be gleaned. Keywords: constructive trusts, equitable fraud, equity, express trusts, formalities, fraud, secret trusts, testamentary dispositions, trusts, unconscionability, wills, Wills Act 1837 TORT I. Introduction In 1929, Lord Buckmaster observed that the doctrine of secret trusts 'has for over 200 years been the subject of vexed controversy'.2 Eighty-two years later, the debate is far from settled, as is apparent from the difficulties that academics have encountered in finding an adequate justification for secret trusts.3 The doctrine continues to be raised in the courts, most recently in De Bruyne v De Bruyne4 in the Court of Appeal, in which the principles underpinning the doctrine were explained in terms which are not consistent with some other recent judgments.5 The reason why the doctrine has generated such disagreement is simple to appreciate. Section 9 of the Wills Act 1837 (WA 1837) stipulates, essentially,6 that any attempt to determine the  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) destination of one's property which is to take effect after one's death that does not appear in a valid will is void. Secret trusts appear to operate in contravention of this rule, notwithstanding that it is a fundamental rule of the British Constitution that judges do not have the power to disapply Acts of Parliament.7 If the testator demonstrates intention to subject the secret trustee to a trust obligation and this intention is communicated to and accepted by the secret trustee during the testator's lifetime8 or, in the case of half-secret trusts, before or contemporaneously with the will's execution,9 then the secret trust is enforceable. Academic contributions to the debate, therefore, have mainly focused on how and why secret trusts are enforced, seemingly in defiance of clear statutory provisions. Most discussions regarding secret trusts focus on two theories, the 'fraud theory' and the 'dehors the will theory'. These are usually presented as competing theories,10 although they have also been proposed as being complementary.11 The fraud theory proceeds along the lines that because equity will not permit a secret trustee to perpetrate a fraud by relying on s. 9 of the WA 1837 in order to avoid performance of the secret trust, it will be enforced, notwithstanding the statute. The generally accepted view is that fraud must involve personal gain by the secret trustee.12 If fraud is understood in this way, secret trusts are difficult to justify, especially half- secret trusts, as a half-secret trustee, being identified on the face of the will as a trustee, cannot take the secret trust property for himself, regardless of whether or not the secret trust is performed. Therefore, those advocating the orthodox form of the fraud theory have proposed a variety of reasons why half-secret trusts are enforced, most notably that half-secret trusts are enforced because they are incorporated into the testator's will under the probate doctrine of incorporation by reference. Unfortunately, this doctrine does not sit easily with the requirements that secret trusts be communicated and accepted, or with the absence of any requirement that a half-secret trust be reduced to writing.13 Generally, however, those who insist that fraud must involve personal gain reach the conclusion that the fraud theory cannot justify the enforcement of secret trusts.14 An alternative position is that the concept of fraud in equity extends beyond fraudulent enrichment, and that any failure by the secret trustee to perform the secret trust constitutes a fraud on the testator and the secret beneficiaries. The minority who subscribe to this view15 argue that the fraud theory can explain the enforcement of both fully and half-secret trusts because equitable fraud need not involve any element of personal gain. Advocates of the fraud theory in either form are not in agreement regarding whether secret trusts are express or constructive.16 The dehors the will theory, which is the most widely accepted justification for the doctrine, is based on the idea that the WA 1837 is irrelevant to the enforcement of secret trusts. There is, however, a dichotomy of opinion regarding precisely how and why a secret trust should fall outside of the scope of the WA 1837. The favoured standpoint is that a secret trust is an express inter vivos trust that remains unconstituted until the death of the testator; this view renders the fraud theory redundant, but raises awkward questions as to whether secret trusts of land ought to comply with s. 53(1)(b) of the Law of Property Act 1925 (LPA 1925).17 Others argue that a secret trust is dehors the will because it is a constructive trust, although opinions differ as to why this should be so.18 The main criticism of the dehors theory is that secret trusts are by their very nature testamentary dispositions, and that therefore it is disingenuous to suggest that they fall outside of the WA 1837.19 What emerges from the literature, then, is a bewildering array of apparently irreconcilable theories and academic standpoints. They are all, however, to a greater or lesser degree, united by a common shortcoming: lack of sufficient judicial authority. Given the number of cases in  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) existence, it seems peculiar that academics have not been inclined to attempt to find a solution or unifying principle through careful analysis of all of the case law. Yet it appears that this has not yet been done. It is therefore proposed to concentrate on what has been said by judges regarding secret trusts in order to determine how, if at all, the doctrine is justifiable. II. The Fraud Theory i. Is Fraud Relevant at all to the Doctrine of Secret Trusts? In Re Snowden,20 Megarry VC dismissed fraud as being merely 'the historical origin of the doctrine',21 explaining that nowadays, 'secret trusts may be established in cases where there is no possibility of fraud'.22 This is frequently accepted as an accurate statement.23 Analysis of the authorities, however, reveals Snowden24 to be anomalous. Forty-two cases spanning 326 years25 have been identified in which the prevention of fraud is referred to as being the underlying justification for the doctrine, including House of Lords' judgments concerning both fully26 and half-secret trusts.27 It is therefore curious that Snowden,28 a first instance decision, has been afforded such significance, not just by academics, but also in the courts of other common law jurisdictions,29 and it is submitted that any assertions that fraud is no longer relevant to the enforcement of secret trusts can be debunked immediately by sheer weight of authority. Serious questions remain, however, regarding the nature of the fraud. These questions can best be answered by analysing the development of the doctrine in relation to fraud. ii. What is the Nature of the Fraud? (a) The Eighteenth-century Judgments30 One of the clearest early judgments is Reech v Kennegal31 in which the secret trustee conceded that he had broken the promise made to the testator that he would perform the secret trust, but insisted that a mere breach of promise was not a fraud. Lord Hardwicke rejected this, stating that, unlike the common law, 'this court considers it as a fraud upon the testator … as well as the [secret beneficiary], by [the secret trustee] representing as if there was no occasion to alter the will'.32 Although the secret trustee stood to gain from breaking his promise, Lord Hardwicke made no mention of personal gain or fraudulent enrichment, emphasizing that any failure to perform the secret trust constituted fraud in equity. Similarly, in Oldham v Litchford,33 a secret trustee's failure to adhere to the trust was described as 'a fraud upon the testator and the legatee'.34 It is therefore unsurprising that in Drakeford v Wilks,35 Lord Hardwicke, in order to prevent fraud on the testator, enforced a secret trust even though the secret trustee had died without gaining personally or even attempting to do so. It was not thought, however, that equity could disregard the statute simply to give effect to the testator's intentions. In Whitton v Russell,36 because it was clear to the testator by the time of his death that the secret trustees did not intend to fulfil the promise, Lord Hardwicke refused to enforce the purported secret trust, explaining that the testator was not 'drawn by this promise, not to add the legacy to this codicil'.37 In this case, fraud on the testator was not present. As Lord Hardwicke pertinently stated, 'every breach of promise is not to be called a fraud'.38  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) During the eighteenth century, then, it was established that secret trusts were enforced to prevent the fraud which arises if the secret trustee's undertaking, upon which the testator relied when executing his will, is not carried out.39 Any assertion that the historical basis of the doctrine is the prevention of fraudulent enrichment40 is incorrect. Strangely, of those who argue that fraud need not involve personal gain,41 not one cites any of these eighteenth-century cases. (b) The Nineteenth-century Judgments (i) Fully Secret Trust Cases Because the dichotomy between fully and half-secret trusts emerged in the nineteenth century, they will now be considered separately. In Muckleston v Brown,42 a case concerning the Mortmain Act 1736,43 Lord Eldon stated that secret trusts are enforced 'on the ground that that testator would not have devised the estate to [the secret trustee], unless he had undertaken to pay that sum. The principle is that the statute shall not be used to cover a fraud',44 and in Chamberlain v Agar,45 Plumer VC referred to '… that Species of Fraud, which consists of not complying with a Promise, on which the Testator relied [when determining his testamentary dispositions]'.46 This approach was continued later in the century. In Jones v Badley,47 for example, Lord Cairns, paraphrasing Sir Page Wood VC in Wallgrave v Tebbs,48 who was in turn quoting Turner LJ in Russell v Jackson,49 stated that the doctrine exists 'for the prevention of fraud',50 explaining that when a person undertakes: … that he will carry the testator's intention into effect, and the property is left to him upon the faith of that promise or undertaking, it is in effect a case of trust … [because] no one can doubt that, if the devisee had stated that he would not carry into effect the intentions of the testator, the disposition in his favour would not have been found in the will.51 This view was approved in the House of Lords in Cullen v Attorney-General for Ireland52 by Lord Westbury, who described a secret beneficiary's interest as being created by the secret beneficiary's promise, 'the breach of which confidence would amount to a fraud'.53 The House of Lords case of McCormick v Grogan,54 particularly Lord Westbury's judgment, is generally regarded as authority that fraud must involve personal gain by the secret trustee,55 and that an unusually high standard of proof must be applied in secret trusts cases. If phrases from the judgment are taken in isolation, this view appears reasonable. Lord Hatherley stated that secret trusts should only be enforced in 'clear cases of fraud'56 when there has been a 'fraudulent inducement'57 by the secret trustee. Lord Westbury used even stronger language, emphasizing 'the criminal character of fraud',58 explaining that the doctrine is based on 'personal fraud'59 which is only present if 'a malus animus is proved by the clearest and most indisputable evidence'60 that the secret trustee 'knew that the testator or the intestate was beguiled and deceived by his conduct'.61 A different picture emerges when the judgments are read fully. Lord Hatherley, once again,62 followed the established view of fraud, explaining that a secret trust arises due to the 'fraud thus committed by the heir in inducing the testator to die intestate, upon the faith of the heir's  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) representations that he would carry all such wishes as were confided to him into effect',63 thus clarifying his comments regarding the need for a fraudulent inducement. He made no statement regarding the standard of proof to be applied. Lord Westbury similarly explained that a secret trust will be imposed when the testator 'communicates the disposition … and the disponee assents to it, either expressly, or by any mode of action which the disponee knows must give to the testator the impression and belief that he fully assents to the request'.64 What he undoubtedly meant was that once it is established that a secret trustee has led the testator to believe that he will perform the secret trust by expressly or implicitly acceding to the testator's requests, the court will insist that he fulfils his promise, otherwise the testator will have been 'beguiled and deceived'65 and the fraud will have been 'proved by the clearest and indisputable evidence'.66 Lord Westbury did not mention the need for an especially high standard of proof. Rather, he was explaining the nature of the fraud and why communication and acceptance are essential requirements for valid secret trusts. If a secret trustee does not perform a properly communicated and accepted secret trust, he is committing a personal fraud or a 'malus animus'.67 His use of the word 'criminal'68 to describe fraud, when read in the context of the rest of his speech and the other authorities from the period, is likely to be a mere reinforcement of the idea that it would be dishonest for the secret trustee to renege on his promise. Lord Westbury's explanation of the legatee being converted into a trustee merely by his acceptance of the secret trust obligation is irreconcilable with the view that he regarded equitable fraud as synonymous with fraud in common law or even criminal law. In fact, as Solicitor-General,69 it appears that Lord Westbury stated that, in secret trusts cases, there must be an arrangement, 'the abandonment of which by [the secret trustee] would amount to a fraud on the testator'70 and that this 'fraud or malus animus lay in the [secret trustee] inducing, by his promise, the testator to confer on her bounty, which, otherwise, he would not have conferred'.71 The interpretation of Lord Westbury's speech submitted here is also corroborated by his comments on the nature of secret trusts in Cullen,72 and by the fact that Lord Cairns, in McCormick,73 professed concurrence with Lord Westbury.74 It is peculiar that, given how frequently Lord Westbury is cited as the leading authority on the fraud theory,75 this interpretation of his speech has apparently never before been proposed. The orthodox interpretation of Lord Westbury's judgment has long provided ammunition for critics of the fraud theory, enabling them to bolster their position with House of Lords' authority. That interpretation, it is submitted, is incorrect, and arguments and authorities relying on it76 should be reconsidered. Support for this view can be gleaned from Norris v Frazer,77 in which the secret trustee was a married woman. Upon the death of the testator, her husband, who had never promised to perform the secret trust, became entitled to the trust property in right of her. It is apparent from the facts of the case that neither the husband nor the wife had sought to enrich themselves fraudulently. The wife, not having control over the secret trust property, was not in a position to gain personally, and the husband's conduct was praised by Bacon VC as having been 'frank and honourable and fair in every respect'.78 Nevertheless, the secret trust was enforced because 'a more direct, a more personal fraud could not be committed than for [the wife] to refuse to perform that promise which she made to the testator on his death bed'.79 Tellingly, Bacon VC cited Lord Westbury's speech in McCormick80 as his main authority. Similarly, in Re Boyes,81 Kay J, who cited McCormick,82 stated that the secret trustee's promise is 'binding the conscience of the donee, on the ground that otherwise a fraud would be committed, because it is to be presumed that if it had not been for such promise the testator would not have made or  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) would have revoked the gift'.83 Evidently, in the late nineteenth century, Lord Westbury was not regarded as having introduced a requirement that fraud must entail personal gain. In conclusion, the uniformity regarding fraud in relation to fully secret trusts during this period is extraordinary. The underlying justification for the enforcement of fully secret trusts was repeatedly held to be the instrument of fraud principle, and fraud was repeatedly held to arise upon any breach by the secret trustee of an undertaking on which the testator relied when deciding how to devise his property. There was no inconsistency during this period, not even in McCormick.84 (ii) Half-secret Trust Cases Although Muckleston v Brown85 has been mentioned in relation to fully secret trusts,86 in fact it was unclear in this case whether or not the secret trustees took as trustees on the face of the will.87 Lord Eldon apparently did not consider this issue to be material; he explained that secret trusts are enforced to prevent fraud on the testator88 without giving any indication that the question of whether or not the trust was fully or half-secret was a crucial one. The obvious inference to draw is that Lord Eldon considered that the instrument of fraud principle applies to all secret trusts. This line of reasoning was followed in Podmore v Gunning.89 Although the alleged half-secret trust was not upheld, Shadwell VC stated that, had sufficient evidence been adduced, he would have given effect to the half-secret trust on the instrument of fraud principle.90 In Smith v Attersoll,91 a half-secret trust was enforced, although Lord Gifford did not explain why. He did, however, describe the secret beneficiaries 'not as legatees, but as cestuis que trust'92 and he described the letter containing the half-secret trust's details as 'not to be considered as testamentary',93 citing a secret trust case as authority.94 This suggests that the half-secret trust was not incorporated into the will by reference, as has been claimed,95 rather that it was enforced on the instrument of fraud principle. Another case which has been cited by proponents of the incorporation by reference theory96 is Johnson v Ball,97 in which a half-secret trust that was not committed to writing until after the will's execution was held void on the ground that to enforce it 'would be to receive, as part of or as codicils to the will, papers subsequent in date to the will, which are unattested'.98 Parker VC proceeded to explain that fully secret trust cases 'have no application to the present; nor … have those cases cited in the argument, in which the will refers to a trust created by the testator by communication with the legatee antecedently to or contemporaneously with the will'.99 Parker VC's description of validly communicated half-secret trusts as being created 'by communication'100 strongly suggests that he did not consider them to be incorporated into the will by reference. It should be noted that although the details of the half-secret trusts had actually been orally communicated to the trustees prior to the will's execution, the will referred to the half-secret trusts 'being appointed by letter'. Thus, the non-enforcement of the orally communicated trusts should not be seen as evidence in favour of the incorporation argument because enforcing these trusts would have been inconsistent with the will.101 It should also be noted that, in Irvine v Sullivan,102 a half-secret trust that was orally communicated prior to the will's execution but not reduced to writing until afterwards was enforced without question. In fact, there is only one case, Re Baillie,103 in which the court declined to enforce an orally  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) communicated half-secret trust. The doctrine of incorporation by reference was not mentioned, however, and North J's reasoning was unclear. Another instructive case is Briggs v Penny,104 in which although the half-secret trust's terms had been put in writing prior to the will's execution, no communication appeared to have taken place. Knight-Bruce VC explained that unattested papers can be admitted either under 'the power of a testator to incorporate in his will another existing paper'105 or for 'the prevention of fraud, by compelling a legatee to perform, after the testator's death, a promise made by him to the testator, upon the faith of which the testator, to the knowledge of the legatee, gave the legacy'.106 That he ordered the determination of whether communication had been made107 indicates that he would have been prepared to enforce the half-secret trusts for the prevention of fraud should sufficient evidence of communication have been established. In Re Fleetwood,108 a properly communicated half-secret trust was enforced. Hall VC, quoting directly from an Irish case, Riordan v Banon,109 made it clear that half-secret trusts are enforced to prevent fraud on the testator, stating that: … the instruments of fraud [principle] appears to me to apply to cases where the will shews some trust was intended, as well as to those where this does not appear upon it. The testator, at least when his purpose is communicated to and accepted by the proposed legatee, makes the disposition to him on the faith of his carrying out his promise, and it would be a fraud in him to refuse to perform that promise.110 He also described half-secret trusts as being created 'by communication',111 which is consistent with the fraud theory, as well as pointing out that were the half-secret trust not to be enforced, 'the residuary legatees would stand to profit from the secret trustee's fraud'.112 Finally, Hall VC held that one of the secret beneficiaries could not take her interest because she had witnessed the will.113 Although this suggests that the half-secret trust was considered to be part of the testamentary disposition and was thus incorporated into it,114 Hall VC's unequivocal comments regarding fraud demonstrate otherwise. In summary, the weight of authority from the nineteenth century favours the view that the fraud theory applies to half as well as to fully secret trusts, notwithstanding academic opinions to the contrary.115 This argument is considerably reinforced when these cases are read in the light of the fully secret trust cases from the period,116 in which fraud was consistently explained as not requiring any personal gain. On the other hand, by the end of the nineteenth century, no half- secret trust had actually been enforced under the incorporation by reference principle or indeed for any reason other than to prevent the statute being used as an instrument of fraud. (c) The Twentieth-century Judgments (i) Fully Secret Trust Cases During this period, the fraud on the testator justification was endorsed four times at first instance117 and thrice by the majority in the Court of Appeal.118 In Re Stead,119 for example, a secret trust was enforced to prevent fraud on the testator. Farwell J saw no contradiction in  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) citing McCormick120 as authority that the doctrine can apply only 'in clear cases of fraud'121 while at the same time giving 'the fullest credit to the [secret trustee] for desiring to speak the truth'.122 It is also notable that in Tharp v Tharp,123 Neville J applied the doctrine of secret trusts to an analogous situation,124 explaining that 'a subsequent action by [the secret trustee] in contradiction of what he promised is a fraud' and that 'he should not, either for himself or for anybody else, take advantage of the fraud that he had committed'.125 Perhaps the seeds of uncertainty were sown in two of the Court of Appeal cases. In Re Maddock,126 Cozens-Hardy LJ, although in the minority on this point, professed uncertainty as to whether the doctrine of secret trusts was based on 'trust, or contract, or estoppel'.127 In Re Gardner (No 1),128 Lord Sterndale, similarly in the minority, stated that the doctrine is based on what 'has been called in some of the cases a fraud. I do not think it matters which you call it'.129 When it is recalled that the reason why the statutory formality requirements do not apply to secret trusts is the instrument of fraud principle, then the terminology does matter, however. To enforce secret trusts for reasons other than the prevention of fraud would be unconstitutional. It must be stressed, however, that in both judgments, the majority subscribed to the fraud on the testator explanation. In two relatively recent cases, misconceptions regarding Lord Westbury's judgment in McCormick130 led to unnecessary questions being asked regarding the standard of proof required in secret trusts cases. In Ottaway v Norman,131 Brightman J, while accepting that the fraud in question is fraud on the testator,132 interpreted Lord Westbury's comments regarding the need for clear evidence of fraud133 as meaning that, in secret trusts cases, the standard of proof is 'perhaps analogous to the standard of proof which this court requires before it will rectify a written instrument'.134 He enforced the secret trust without further reference to the standard of proof, however, so his comments should not be taken to be an accurate reflection of the law.135 In Re Snowden,136 Megarry VC based his judgment on the orthodox interpretation of Lord Westbury's speech in McCormick.137 Having stated that secret trusts can be enforced in the absence of fraud,138 he concluded, on the basis of Lord Westbury's comments, that in secret trust cases where fraudulent enrichment is possible, a high standard of proof ought to be applied, and that in all other secret trust cases, the ordinary civil standard should apply.139 Megarry VC's comments on fraud are incongruous with all other authorities and ought to be disregarded, and his assertions regarding the standard of proof are groundless, especially in light of the interpretation of Lord Westbury's speech that has been submitted here. If Megarry VC's take on the doctrine of secret trusts is to be accepted, it must also be accepted that in 1869, not only did Lord Westbury propose a new definition of fraud, he also introduced an especially high standard of proof in cases where this fraud was present, and that both of these changes went unnoticed by the courts, even the House of Lords,140 for over a century. It is thus submitted, therefore, that academic arguments141 or judgments142 relying on Megarry VC's comments ought to be reassessed. (ii) Half-secret Trust Cases The first significant case143 is the leading case, Blackwell v Blackwell,144 the most complete House of Lords analysis of the principles governing secret trusts. A half-secret trust, which had been properly communicated and accepted145 was unanimously upheld for the prevention of fraud. The view that fraud must involve the secret trustee gaining personally was rejected  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) outright. Lord Buckmaster observed that if either a fully or a half-secret trust is not performed, 'the real beneficiaries are equally defrauded in both cases, and the faith on which the testator relied is equally betrayed'.146 Lord Warrington explained the fraud in similar terms, describing a secret trust as 'arising from the acceptance by the legatee of a trust, communicated to him by the testator, on the faith of which acceptance the will was made or left unrevoked, as the case might be',147 so that 'it would be a fraud on the part of the legatees to refuse to carry out the trust'.148 Finally, Viscount Sumner was unequivocal in endorsing the fraud theory, stating that the enforcement of half-secret trusts is 'justified by the same considerations as in the cases of fraud and absolute gifts'.149 It is strange that doubts as to why half-secret trusts, and also fully secret trusts, are enforced have persisted since Blackwell.150 Indeed, the enforcement of half-secret trusts has been expressly attributed to the prevention of fraud three times151 since 1929. It has to be asked why a unanimous House of Lords' judgment which is consistent with the overwhelming majority of other authorities has been so frequently called into question, and why the myth that equitable fraud must involve personal gain has proven so persistent. (d) The Twenty-first-century Judgments Despite the authorities considered above, Megarry VC's take on fraud has recently been followed twice152 in the tribunal courts. More seriously, in Kasperbauer v Griffith,153 in the Court of Appeal, Peter Gibson LJ stated that, in secret trusts cases, 'equity acts to prevent fraud or other unconscionable conduct'.154 It is submitted that Peter Gibson LJ failed to appreciate that, in equity, unconscionable conduct is fraud. In Healey v Brown,155 however, a case on mutual wills,156 it was stated that secret trusts are enforced for 'avoidance of a fraud on the beneficiary and the testator'.157 This was very recently reaffirmed in the Court of Appeal in De Bruyne v De Bruyne.158 Although the case did not actually concern a secret trust, in a unanimous decision, the principles governing secret trusts were explained and applied to a situation that was held to be analogous.159 Patten LJ explained with regard to secret trusts (tellingly, he did not distinguish between the two types), and also mutual wills that: In neither case does the intended beneficiary rely in any sense on the agreement (he may not even be aware of it) but, in both cases, equity will regard it as against conscience for the owner of the property to deny the terms upon which he received it. It is not necessary in such cases to show that the property was acquired by actual fraud (although the principle would apply equally in such cases). The concept of fraud in equity is much wider and can extend to unconscionable or inequitable conduct in the form of a denial or refusal to carry out the agreement to hold the property for the benefit of the third party which was the only basis upon which the property was transferred. This is sufficient in itself to create the fiduciary obligation and to require the imposition of a constructive trust.160 Thus the consistency of the judiciary in relation to the nature of the fraud continues until the present day. The very small number of cases containing conflicting statements can only sensibly be dismissed as being anomalous.161 As it is abundantly clear from the authorities that equitable fraud need not involve personal gain, the idea that fraud can be prevented by the imposition of a resulting trust in favour of the testator's estate, and that therefore the fraud theory cannot explain why the secret trust should actually be enforced,162 ought to be disregarded, as should concerns regarding the standard of proof to be applied.163 It is equally clear that all secret trusts are justified on the same principles. There is simply insufficient evidence from the case law to support assertions that half-secret trusts are incorporated into the will by reference164 or are  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) enforced for any other reasons.165 Similarly, arguments that fraud on the testator is not a strong enough type of fraud to explain equity's intervention,166 and that there is a lack of clarity in the judgments regarding that nature of fraud,167 are not borne out by the authorities. The fraud which causes equity's intervention arises if the secret trustee's promise to perform the trust, upon which the testator relied when executing his testamentary dispositions, is not performed. Adoption of any other notion of fraud would involve overturning not only several centuries of jurisprudence, but also three House of Lords' decisions. iii. Is the 'Instrument of Fraud' Principle Unconstitutional? Although the fraud theory is indisputably the underlying reason that the courts have provided for the enforcement of secret trusts, it has been claimed that the instrument of fraud principle is unconstitutional.168 The judges involved in formulating the principle, however, were acutely aware of their duty to follow Parliament's will. In Reech v Kennegal,169 Lord Hardwicke explained that 'the statute should never be understood to protect fraud; and therefore whenever a case is infected with fraud … the court will not suffer the statute to protect it'.170 Similarly, in Podmore v Gunning,171 Shadwell VC stated that 'the very worst method of construing the Statute of Frauds would be that which would give rise to frauds instead of preventing them'.172 In Wallgrave v Tebbs,173 much the same reasoning was applied by Sir Page Wood, as he made clear that when enforcing secret trusts, the court 'does not violate the spirit of the statutes; but for the same end, namely prevention of fraud, it engrafts the trusts on the devise by admitting evidence which the statute would in terms exclude'.174 Perhaps, then, the principle is better understood as that equity will not allow a statute intended to prevent fraud to be used as an instrument of fraud.175 Cases involving the Mortmain Act 1736176 are also instructive because, in such cases, testators generally attempted to hide behind the formality requirements of the Statute of Frauds as a means of facilitating dispositions that would otherwise have been rendered illegal by the Mortmain Act. This prompted much judicial agonizing about the intentions of Parliament, as is exemplified by Lord Eldon's approach in Stickland v Aldridge:177 It would be a strong proposition, that the providence of the Legislature, having attempted expressly to prevent a disposition of land for purposes of this sort, was so short as to be baffled by such a transaction as is stated by this Bill … It would be singular, if the Court would protect individuals, and would not act, to prevent a fraud upon the Law itself.178 This again demonstrates that the intention of Parliament was paramount in the minds of the judges when the instrument of fraud principle was developed.179 It appears that the instrument of fraud principle was fully formulated by the early nineteenth century for, although it has been applied many times, it has not since been explained in such detail. This does not, however, mean that judges ceased to pay heed to the intention of Parliament. In Blackwell180 Viscount Sumner, pointing out that secret trusts have been enforced for several centuries, commented that the WA 1837: … is an amending Act, of which it may be said in no merely theoretical sense that the Legislature was acquainted with the existing state of the law … for two Royal Commissions … after enquiring (inter alia) into the subject of wills of real and personal property had reported  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) before the Wills Act came before Parliament as a Bill. The extent to which parol evidence was admissible under existing practice for various purposes and the evils thereout arising were known … [and] no … remedy is attempted by the Statute of Wills for the mischiefs that might arise from admitting evidence [in secret trusts cases].181 In fact, as Lord Nottingham referred to the enforcement of secret trusts as 'the constant course of this court'182 and regarded the doctrine 'as established',183 it seems very likely that the legislature was equally aware of the doctrine in 1677 when the first compulsory statutory formality requirements were enacted.184 Therefore, although there is no express reference to the doctrine of secret trusts in the WA 1837 or the Statute of Frauds, it seems very likely that the continued existence of the doctrine of secret trusts was tacitly endorsed by Parliament when the statutory formality requirements for testamentary dispositions were enacted and amended without reference to secret trusts. So, if Viscount Sumner's view of Parliament's intention regarding secret trusts is accepted, to state that the doctrine of secret trusts is unconstitutional is, in fact, to disregard not only the weight of authorities, but also the will of Parliament. It is clear that the judiciary has taken the view that to fail to enforce secret trusts and thus permit s. 9 to be used as an instrument of fraud would be subversive to the doctrine of parliamentary sovereignty. As Cotton LJ put it, in cases of correctly communicated and accepted secret trusts, 'the court is justified and bound to admit parol evidence'.185 iv. Do the Differing Communication Requirements for Fully and Half-secret Trusts Undermine the Fraud Theory? The rule that half-secret trusts must be communicated before or contemporaneously with the will's execution has generated much controversy. Numerous justifications for its existence have been proposed, and several commentators have used the rule as the cornerstone of their assertions regarding the justifications for the doctrine itself.186 In fact, the rule is simply the result of policy decisions.187 In Blackwell,188 Viscount Sumner stated that a half-secret trust could not be enforced if communicated after the will's execution; this would be tantamount to allowing a testator to 'reserve to himself a power of making future unwitnessed dispositions [and thus to] “give the go-by” to the requirements of the Wills Act'.189 Put another way, whereas Viscount Sumner considered the enforcement of properly communicated secret trusts to be in accordance with the legislature's intention, he considered that Parliament did not intend half- secret trusts communicated after the will to be enforceable,190 apparently because the will in such cases serves as an overt statement by the testator that although he has made his will, he still intends to alter by parol the final destination of legacies bequeathed under it. Viscount Sumner saw no contradiction between interpreting the effect of the WA 1837 thus and attributing the enforcement of secret trusts to the prevention of fraud, nor is any such contradiction suggested in any of the other authorities.191 This is unsurprising because even if the non-performance of a half-secret trust communicated and accepted after the execution of the will amounts to a fraud on the testator, it has been held on several occasions that the enforcement of such half-secret trusts is against the policy of the WA 1837. Thus, from a constitutional standpoint, equity is powerless to intercede to prevent any such fraud. In jurisdictions where the same policy decision has not been made, equity may act.192 An analogy may be drawn with the Mortmain cases. In many such cases,193 the court accepted that the  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) secret trustees took subject to a mandatory obligation to perform the secret trust because any non-performance would amount to a fraud on the testator. This mandatory obligation upon the secret trustee also amounted to an illegal devise, however, and the property was returned to the testator's estate by resulting trust. Again, because of the manner in which legislation was interpreted by the judges, equity was powerless to intercede to prevent the fraud on the testator. It is also worth noting that a will which refers to a half-secret trust to be communicated in the future also serves as an overt and legally significant194 statement that the testator has executed his will subject to a secret trust without relying on any undertaking by the secret trustee to perform it. In stark terms, the testator, having executed the will referring to the secret trust, has accepted the possibility that he may die without having procured acceptance of the secret trust obligation. Therefore, it is in fact arguable that no fraud on the testator occurs if the secret trust is not performed, whether or not communication and acceptance eventually took place. The same cannot be said in the case of a fully secret trust communicated after the execution of the will. In this latter case, there was no secret trust when the will was executed because it was not mentioned in the will, nor had it been communicated to anyone. Even if the secret trust existed in the mind or the written notes of the testator, he had, at this point, taken no steps to put this plan into operation. Hence, unlike in the situation described above, it cannot be said that the testator executed his will subject to any secret trust at all. If, after the execution of the will, the testator communicates a secret trust to the relevant legatee, this is the first overt and legally significant evidence of the existence of the secret trust. If the testator does not amend his will after receiving an express or implied assurance that the secret trust will be performed, it is reasonable to presume that he is relying on this assurance. Thus, the assertion that the differing communication requirements do not impugn upon the fraud theory can be supported by the application of logic, regardless of policy considerations. This avenue is yet to be explored in the English courts, possibly due to the policy reasons outlined above, but may warrant further consideration, especially in jurisdictions where half-secret trusts communicated after the will's execution are enforceable, apparently on the ground of fraud. III. The Dehors the Will Theory Although it is beyond doubt that the secret trusts are enforced due to the instrument of fraud principle, it is also apparent from the authorities that secret trusts are dehors the will and enforced in a way that does not conflict with the WA 1837. This point was made by Viscount Sumner in Blackwell v Blackwell,195 who, in addition to being unequivocal in attributing the enforcement of secret trusts to the prevention of fraud, said that he could 'not see how the statute-law relating to the form of a valid will is concerned at all'196 with the enforcement of secret trusts. In fact, there are numerous examples throughout the case law of express or implied references to secret trusts being dehors the will by judges endorsing the fraud theory.197 As this is at odds with the majority of academic opinion,198 it is necessary to explore the development of the theory in the courts. If the sections on fraud are seen as explaining why secret trusts are enforced, the following sections can be considered as identifying how this is done.199 Many of the debates regarding the relevance of s. 9 to the doctrine revolve around the question of whether secret trusts are testamentary dispositions, in which case they are exceptions to the WA 1837,200 express inter vivos dispositions, in which case the WA 1837 is irrelevant to questions regarding their enforcement,201 or constructive trusts.202 Before proceeding, therefore, the meaning of s. 9 should be reconsidered. The section states that 'no will shall be valid' unless  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) it is in writing and signed by the testator in the presence of two or more attesting witnesses. The meaning of the term 'will' is described in s. 1 as extending to 'a testament, and to a codicil … and to any other testamentary disposition'. Thus, the term 'testamentary disposition' is synonymous with the term 'will'. The meaning of s. 9 is that all valid testamentary dispositions must be executed in accordance with the formality requirements. Any attempt to dispose of property upon death that does not comply with s. 9 shall not be valid and therefore cannot correctly be referred to as a testamentary disposition. In other words, s. 9 regulates attempts at making testamentary dispositions. Actual testamentary dispositions by their very nature satisfy s. 9. So, to state that a secret trust is not a testamentary disposition is a statement of the obvious. This does not necessarily mean that the WA 1837 is irrelevant to questions regarding its enforcement. This narrow definition of 'testamentary disposition' is not widely accepted.203 A wider definition that has been proposed is that any ambulatory and revocable disposition that is enforced is a testamentary disposition, regardless of whether it appears on the document commonly referred to as the 'will',204 and regardless of whether it is admitted to probate. Such 'testamentary dispositions' are regulated by s. 9. By this definition, a secret trust is a testamentary disposition which is enforced as an exception to the Wills Act. In order to answer the difficult questions205 surrounding the position of the secret trust vis-à-vis the statutory formality requirements of the Wills Act, the creation and enforcement of the secret trust will be examined in detail. i. Is the Testator's Declaration of Trust a Testamentary Disposition? There is a strong judicial consensus that the testator's declaration of trust is not a testamentary disposition. In Chamberlain v Agar,206 in which a fully secret trust expressed in writing was upheld, the Vice Chancellor stated that 'no Paper exists, that can be properly described as a Will, Codicil, or testamentary Paper'.207 Similarly, in Smith v Attersoll,208 it was held that the paper containing the details of the half-secret trust was 'not to be considered testamentary',209 and in Briggs v Penny,210 of four papers containing the details of purported half-secret trusts, Knight-Bruce VC said that 'not one can … be treated or considered as testamentary. If any one of them is valid at all, it can only be deemed valid in some other character than as a testamentary instrument.'211 This is consistent with the view of Stuart VC in Lomax v Ripley,212 who made it clear that papers containing details of purported secret trusts did not 'have a testamentary character'213 because they could not have been 'admitted to probate'.214 Likewise, in Re Maddock,215 Collins MR referred to the written terms of the secret trusts as 'collateral non- testamentary document[s]',216 and in Re Bateman's WT,217 Pennycuick VC described a clause in the testator's will purporting to create a half-secret trust as 'an attempt to dispose of the estate by a non-testamentary instrument'.218 Finally, in Re Cooper,219 Greene MR dismissed the argument that half-secret trusts should be incorporated into the will as an argument for 'incorporating by reference into the testamentary dispositions of the testator the trusts actually declared to his trustees'.220 Clearly, he did not regard the declarations of secret trusts as testamentary dispositions. Significantly, there is not one case in which the testator's declaration of trust is described as being a testamentary disposition.221 What is also apparent from these authorities is that by 'testamentary disposition', the judges concerned were referring to the narrow definition of the term, i.e. the testator's will and anything incorporated therein, as opposed to the wider definition.  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) The next question is whether s. 9 applies to the testator's declaration of trust. The most instructive cases are those which deal with uncommunicated secret trusts which are, of course, void. The reason for this is that the testator's declaration of trust does not comply with the WA 1837. The leading case on this rule is Wallgrave v Tebbs,222 in which Page Wood VC refused to enforce the uncommunicated secret trust on the grounds that it is 'impossible for the Court to look upon a document which is excluded by the statute'.223 Similarly, in Moss v Cooper,224 the same judge explained that 'if you attempt to raise a trust out of some uncommunicated intention, you contravene the express provisions of the statute by varying the dispositions of the will by parol evidence'.225 In Briggs v Penny,226 it was also held by Knight-Bruce VC that the testator's papers were not admissible as evidence as 'the statute of 1837 seems to me to exclude them'.227 The requirements of communication and acceptance have frequently been reaffirmed, including by the House of Lords.228 These authorities reaffirm that the narrow definition of testamentary disposition is the correct one, as they are direct authorities that the Wills Act does apply to the declaration of secret trust, even though it has been repeatedly held that such a declaration is not a testamentary disposition. Thus, assertions that secret trusts are enforceable as express inter vivos trusts, to which the Wills Act has no application,229 are unsustainable. Express inter vivos trusts are unilateral230 and need not comply with statutory formality requirements for valid wills.231 The testator's declaration of secret trust is affected by the statutory formality requirements, and the secret trust can only be given effect if the testator's declaration is communicated to and accepted by the secret trustee. Classifying a secret trust as an express inter vivos trust is simply contrary to the authorities. Perhaps the reason why the classification of secret trusts as express inter vivos trusts has endured is that it seems to be presumed that, if the declaration of secret trust is not a testamentary disposition, then it must be an inter vivos disposition.232 In fact, the declaration of secret trust has no effect due to non-compliance with the Wills Act. It is plainly inaccurate to describe as an inter vivos disposition that which is not a disposition at all. Although not a disposition, the declaration of secret trust by the testator has been described as being 'in furtherance of the testamentary dispositions',233 and, in Blackwell v Blackwell,234 Lord Buckmaster referred to the declarations of secret trusts as 'testamentary intentions',235 as did Vaughan Williams LJ in Re Pitt-Rivers.236 It is therefore submitted that the testator's declaration of trust is best described as an expression of his testamentary intentions. ii. Is the Secret Beneficiary's Interest Acquired by Testamentary Disposition? It would seem self-evident that if the testator's declaration of secret trust is not a testamentary disposition, then the interest that the secret beneficiary takes cannot be part of a testamentary disposition either. This is indeed the case, as several authorities demonstrate. The starting point is the House of Lords' judgment of Cullen v Attorney-General for Ireland,237 in which it was held that a secret trust was not a testamentary disposition and did not therefore qualify for a certain taxation exemption.238 Although this case has been dismissed as 'a policy decision',239 it deserves closer attention. Lord Westbury described the title claimed by a secret beneficiary as 'a title dehors the will, and which cannot be correctly termed testamentary',240 and Lord Chelmsford reached a similar conclusion.241 In Re Young,242 it was held that a half-secret beneficiary could take his interest, even though he had witnessed the testator's will.243 Although s. 15 of the WA 1837 renders void any disposition by will to a person who has been a witness to that will, it was  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) held that 'a beneficiary under a secret trust does not take under the will, and that he is not, therefore, affected by s. 15'.244 This is further authority that the secret beneficiary's interest is not bestowed upon him by way of a testamentary disposition. These authorities are entirely consistent with the narrow definition of testamentary disposition;245 by this definition, it is obvious, despite numerous assertions to the contrary,246 that a secret trust is not enforced as a testamentary disposition for the simple reason that it does not appear in full in the will. Thus, as well as it being impossible that a secret trust is enforced as an express inter vivos trust, it is also plainly the case that a secret trust is not an express testamentary trust either.247 iii. How is the Secret Beneficiary's Interest Acquired? It is well established that secret trusts must be communicated to and accepted by the secret trustee in order for the secret beneficiaries to acquire an interest on the death of the testator.248 It is as a result of the communication and acceptance of the secret trust obligation that, at the time of the testator's death, the secret trustee's conscience is affected.249 This is entirely consistent with the classification of a secret trust as a constructive trust which is imposed on the secret trustee because any deviation from his promise would amount to a fraud,250 rather than as an express trust. Again, there are a number of instructive authorities. In Stickland v Aldridge,251 Lord Eldon stated that, in cases of secret trusts, 'though within the intention [of the legislature] it cannot be said a trust is declared under these circumstances, it is clear, a trust would be created, upon the principle, on which this Court acts, as to fraud'.252 Put another way, the testator's declaration of trust cannot be said to create an enforceable express trust due to the statutory formality requirements, but because failure to adhere to the agreement would constitute a fraud on the part of the secret trustee, a constructive trust arises. Direct authority that a secret trust is not an express trust can be found in Lomax v Ripley,253 in which Stuart VC stated that secret trusts may only be enforced if it is possible to 'prove by evidence a trust expressed, or such an engagement by words or by silence as would authorize the Court to say that [the secret trustee] undertook to do that which prevented the devisor from imposing upon her an express trust'.254 Lord Westbury used language consistent with the constructive trust classification in McCormick v Grogan,255 stating that equity 'imposes upon [the secret trustee] a personal obligation, because he applies the Act as an instrument for accomplishing a fraud'.256 The same view was echoed in Re Spencer's Will.257 Cotton LJ stated that in alleged secret trust cases: … parol evidence is to be produced for the purpose of showing that there were circumstances which induced the testator to make this bequest, and which would enable the court to fasten upon the legatees an obligation or trust … [and that] without creating an express declaration of trust … under the circumstances, implies an obligation of performing the wishes of the testator which the testator had relied upon their performing as a ground for giving the legacy.258 Another illuminating judgment is that of Kay J in Re Boyes,259 who said that in cases of valid secret trusts, 'the Court has compelled discovery and performance of the promise, treating it as a trust binding the conscience of the donee, on the ground that otherwise a fraud would be committed'.260 Similarly, in Re Pitt-Rivers,261 Vaughan Williams LJ described the secret beneficiary's interest as being 'created by the giving by the [secret trustee] of a promise which it would be unconscientious for [the secret trustee] not to perform'262 (as opposed to being created by the testator's declaration of trust). In Blackwell,263 Lord Warrington described a secret trust in  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) similar terms, as 'arising from the acceptance by the legatee of a trust, communicated to him by the testator, on the faith of which acceptance the will was made or left unrevoked …'.264 In Blackwell,265 Viscount Sumner emphasized the similarities between secret trusts and resulting trusts, pointing out that it would be illogical for the court to refuse to give effect to a half-secret trust on the ground that it does not appear in the will but then to impose unquestioningly a resulting trust in favour of the estate '[as if] the will gives the fund to the legatee in trust for the residuary legatee, as if the document, signed and witnessed, had said so in words'.266 Neither resulting nor constructive trusts appear in the will, but both are imposed when appropriate as a result of the 'exercise of general equitable jurisdiction'267 with which the legislature has never sought to interfere. Resulting trusts, which are routinely and uncontroversially imposed on legacies,268 are dehors the will in exactly the same way as secret trusts are. This also goes a long way towards answering those who claim that a half-secret trust, because it is identified on the face of the will, must be an express trust.269 A half-secret trust is no more an express trust than is a resulting trust arising when property is bequeathed by will to a trustee to hold subject to a trust appearing in the will but whose objects are uncertain. There is no reason why a person named in the will as a trustee may not, in appropriate circumstances, be compelled to hold on constructive trust for a party not named in the will. More recently, in Kasperbauer v Griffith,270 Paragon Finance v Thakerar,271 Healey v Brown,272 and De Bruyne v De Bruyne,273 secret trusts were described as constructive trusts, and in Re Tyler,274 secret trusts were expressly distinguished from 'trusts created inter vivos'.275 Thus, in the face of so many authorities, the classification of secret trusts as constructive trusts, imposed for the prevention of fraud, can scarcely be in doubt.276 As secret trusts are constructive trusts, s. 53(1)(b) LPA 1925 is not relevant to questions regarding their enforcement.277 Although the question of whether this provision should affect secret trusts is a favourite topic of commentators,278 there is, perhaps unsurprisingly, a notable scarcity of references to s. 53(1)(b) or its predecessor in the case law.279 Simply put, the view that secret trusts are express trusts,280 or that their classification as express or constructive trusts is immaterial or impossible to ascertain,281 is not supported by the authorities. That the secret beneficiary's interest arises dehors the will by way of a constructive trust, the imposition of which is detached from the requirements of s. 9, also further undermines the argument that the doctrine of secret trusts is unconstitutional. It is also submitted that much of the confusion surrounding the dehors the will theory has stemmed from a fundamental misunderstanding of the meaning of 'testamentary disposition' and 'will' and thus s. 9. If the narrower meaning proposed here is accepted, all of the authorities cited here can be reconciled with one another. IV. Do Social Changes since the Doctrine was Developed Mean that it is now Obsolete? It is often assumed that the doctrine of secret trusts was developed in order to facilitate secret bequests to mistresses or illegitimate families.282 This has led some to argue that, because illegitimacy and infidelity are more socially acceptable today than they once were, the doctrine of secret trusts is no longer of relevance.283 In fact, out of 60 secret trust cases284 that have been identified, only six285 clearly contain secret trusts in favour of mistresses or illegitimate children, and two others286 possibly do. Of the others, 19 are Mortmain cases. The remaining cases contain examples of secret trusts created for a multitude of reasons; for example, there are cases where the testator was persuaded to create the secret trust by a deceitful secret trustee,287 cases where the testator wanted to change his will at a very late stage and it appeared easier to create a secret trust than to amend the will,288 cases where the secret trust  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) arose as a result of a poorly drafted will,289 cases where the secret trust was created in an apparent attempt to avoid tax liability,290 cases where the secret trust was created as a result of legal advice,291 and cases where the secret trust arose out of the testator's indecisiveness.292 It is clear that the doctrine was not developed to allow testators to provide secretly for illegitimate families, or indeed for reasons involving the Mortmain Acts.293 In fact, the motivation of the testator is rarely mentioned in the judgments. The obvious conclusion to draw is that any failure to perform a secret trust is a fraud, regardless of why the secret trust was created. V. Conclusion Despite the lack of academic consensus regarding the justifications for the enforcement of secret trusts, analysis of the case law has revealed remarkable judicial consistency regarding the doctrine. The inescapable conclusion is that secret trusts are enforced, notwithstanding the formality requirements, because equity will not allow s. 9 of the WA 1837, a statute enacted by Parliament to prevent fraud, to be used to perpetrate fraud. The case law overwhelmingly indicates that any failure by the secret trustee to perform the secret trust amounts to a fraud on the testator because it is taken that the testator relied on the secret trustee's promise to perform when determining his testamentary dispositions. Of course, the secret beneficiaries will also be injured by such fraud. While the fraud theory explains why secret trusts are enforced, in order to understand how this is done, it must be appreciated that secret trusts are dehors the will. The testator's declaration of trust cannot have effect as an express trust. It does not comply with s. 9 and thus it cannot be considered to be a testamentary disposition, if the term 'testamentary disposition' is understood correctly. In fact, it is not a valid disposition at all. It is an expression of testamentary intention. If the testator dies having relied on the secret trustee's promise to carry into effect this intention, however, the secret trustee's conscience is affected because it would, as explained above, be fraudulent for him not to perform it. Therefore, at the moment of the testator's death, a constructive trust arises by operation of law, and the secret trustee is bound to do what he promised to do. This constructive trust, of course, arises dehors the will and cannot be termed testamentary either. Thus, the fraud theory and the dehors theory are inexorably linked. It is only in cases of fraud that equity is justified in imposing a constructive trust because its imposition gives effect to the testator's testamentary intentions, even though those testamentary intentions were not expressed in such a way as to satisfy s. 9 of the WA 1837. Once this is understood, it is clear why the requirements for a valid secret trust are intention, communication and acceptance. For the secret trustee's conscience to be bound, he must have accepted an instruction sufficiently imperative for the court to hold that failure to perform would amount to a fraud. If it is borne in mind that the court is only justified in imposing the constructive trust because to do so would be in accordance with the will of Parliament, it can be appreciated why the differing communication requirement exists for half-secret trusts. English judges have, whether rightly or wrongly, reached the conclusion that it was not the intention of Parliament that half-secret trusts communicated after the will's execution should be enforceable in any circumstances. The differing communication requirement is the inevitable and proper consequence of this conclusion. This conclusion is based on thorough analysis of all relevant English case law. The consistency in the judgments, especially from the higher courts, is such that any academic arguments or  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) legal developments based on considerations other than the long-established doctrine of secret trusts revealed here ought to be reassessed. Appendix Cases where the Prevention of Fraud was held to be the Underlying Reason for the Enforcement of Secret Trusts I. Fully Secret Trusts Cases Thynn v Thynn (1684) 1 Vern 296 Devenish v Baines (1689) Prec Ch 3 Oldham v Litchford (1705) 2 Freem Chy 284 Sellack v Harris (1708) 2 Eq. CA. ABR 46 Whitton v Russell (1739) 1 Ves 124 Drakeford v Wilks (1747) 3 Atk 539 Reech v Kennegal (1748) 1 Ves Sen 123 Boson v Statham (1760) 1 Cox 16 Barrow v Greenough (1796) 3 Ves Jun 152 Muckleston v Brown (1801) Ves Jun 53 Stickland v Aldridge (1804) 9 Ves Jun 517 Chamberlain v Agar (1813) 2 V & B 257 Russell v Jackson (1852) 10 Hare 204 Wallgrave v Tebbs (1855) 2 K & J 313 Lomax v Ripley (1855) 3 Sm & G 48 Tee v Ferris (1856) 2 K & J 357 Moss v Cooper (1861) 1 J & H 352 Sweeting v Sweeting (1863) 33 LJ Ch 211  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) Cullen v Attorney General for Ireland (1868) LR 3 Ch App 362 Jones v Badley (1868) LR 3 Ch App 362 McCormick v Grogan (1869) LR 4 HL 82 Norris v Frazer (1873) LR 15 Eq 318 Rowbotham v Dunnett (1878) 8 Ch D 430 Re Boyes (1884) 26 Ch D 531 Re Spencer's Will (1887) 57 LT 519 Re Stead 1 Ch 237 Re Pitt-Rivers 1 Ch 403 Re Maddock 2 Ch 220 Re Gardner (No 1) 2 Ch 523 Re Falkiner 1 Ch 88 Re Williams Ch 244 Ottaway v Norman Ch 698 II. Half-secret Trusts Cases Podmore v Gunning (1836) 7 Sim 643 Briggs v Penny (1851) 3 M & G 546 Re Fleetwood (1880) 15 Ch D 594 Blackwell v Blackwell AC 318 Re Keen Ch 236 Re Cooper Ch 811 Re Young Ch 344 III. Cases Where the Doctrine of Secret Trusts was Being Discussed Generally  The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) Tharp v Tharp 1 Ch 142 Healey v Brown WTLR 849 De Bruyne v De Bruyne EWCA Civ 519 1 This paper draws on a thesis supervised by Dr P. Walton. I am very grateful to him for his assistance, as I am to Professor R. Gregory for his advice and insights. 2 Blackwell v Blackwell AC 235 at 318. 3 See below, nn. 9–18 and accompanying text, for a summary and examples of the various academic views on the doctrine. 4 EWCA Civ 519. The doctrine also continues to be raised in the courts of other common law jurisdictions. See, for example, Chinn v Hanreider 2009 BCSC 635 and Child Support Register & Kanavos & Ors FMCAfam 871 (20 August 2009). 5 Taylor v Revenue & Customs Commissioners STC (SCD) 1159 and Davies v Revenue and Customs Commissioners UKFTT 138, TC. 6 The meaning of s. 9 of the WA 1837 is considered in more detail below in Part III. 7 See, for example, comments of Lord Reid in Madzimbamuto v Lardner-Burke 1 AC 645 at 723. 8 These long-standing requirements were usefully summarized by Brightman J in Ottaway v Norman Ch 698 at 702. 9 See Blackwell v Blackwell, above n. 1 at 334 and 339 per Viscount Sumner. 10 See, for example, D. Hodge, 'Secret Trusts: The Fraud Theory Revisited' Conv 341; P. Critchley, 'Instruments of Fraud, Testamentary Dispositions, and the Doctrine of Secret Trusts' (1999) 115 LQR 631; E. Challinor, 'Debunking the Myth of Secret Trusts' Conv 492; R.A. Pearce and J. Stevens, The Law of Trusts and Equitable Obligations, 3rd edn (Oxford University Press: Oxford, 2005) ch. 7; J. Martin, Hanbury and Martin Modern Equity, 18th edn (Sweet & Maxwell: London, 2009) ch. 5. 11 See especially J.G. Fleming, 'Secret Trusts' (1947) 12 Conv 28; S. Wilson, Todd and Wilson's Textbook on Trusts, 9th edn (Oxford University Press: Oxford, 2009) ch. 10. 12 See, for example, L.A. Sheridan, 'English and Irish Secret Trusts' (1951) 11 LQR 314; J.A. Andrews, 'Creating Secret Trusts' (1963) 27 Conv 92; P. Matthews, 'The True Basis of the Half-Secret Trust?' Conv 360; B. Perrins, 'Secret Trusts: The Key to the Dehors?' Conv 248; Critchley, above n. 9; Challinor, above n. 9; B. McFarlane, 'Constructive trusts arising on a receipt of property sub conditione' (2004) 120 LQR 667; Martin, above n. 9; Pearce and Stevens, above n. 9. 13 See Sheridan, above n. 11; Matthews, above n. 11, on the incorporation by reference theory. See below II.ii(b)(ii) for consideration of this theory, especially n. 99 and accompanying text on the requirements for incorporation and n. 101 and accompanying text on orally created half-secret trusts. For an alternative explanation of the enforcement of half-secret trusts, see Perrins, above n. 11. 14 See especially McFarlane, above n. 11; Challinor, above n. 9; Pearce and Stevens, above n. 9; A. Hudson, Equity & Trusts, 6th edn (Cavendish: London, 2010) ch. 6. Critchley, above n. 9, asserts that the fraud theory can provide a partial justification, but cannot explain the enforcement of half-secret trusts or fully secret trusts with honest secret trustees. The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) 15 See Wilson, above n. 10; Fleming, above n. 10; Hodge, above n. 9; D. Hayton and C. Mitchell, Hayton and Marshall Commentary and Cases on The Law of Trusts and Equitable Remedies, 12th edn (Sweet & Maxwell: London, 2005) ch. 2, section 3. 16 For differing opinions, see, for example, Wilson, above n. 10; Hodge, above n. 9; Hayton and Mitchell, above n. 14; Sheridan, above n. 11. 17 In particular, Pearce and Stevens, above n. 9 at 228, claim that there is 'an overwhelming consensus' that secret trusts are express inter vivos trusts. Critchley, above n. 9 at 640, describes this as the more 'sophisticated' version of the dehors theory. See also D. Kincaid, 'The Tangled Web: the Relationship between a Secret Trust and a Will' Conv 420. Note that s. 53(1)(b) LPA 1925 requires that 'a declaration of a trust respecting any land or any interest therein must be manifested and proved by some writing …'. The question of the relevance of s. 53(1)(b) is addressed below at Part III.iii. 18 See especially McFarlane, above n. 11. 19 See especially Critchley, above n. 9. 20 Ch 528. 21 Ibid. at 535. Such a view is not unique to English law. See also C. Rickett, 'Thoughts on Secret Trusts from New Zealand' Conv 302. 22 Ibid. at 535. 23 For example, Megarry VC's comments have recently been cited with approval in two tribunal cases, Taylor v Revenue & Customs Commissioners, above n. 4 and Davies v Revenue and Customs Commissioners, above n. 4. See also, for example, comments of Kincaid, above n. 16 at 440; Pearce and Stevens, above n. 9 at 224; Martin, above n. 9 at 161; Wilson, above n. 10 at 257. See also below n. 28. The question of the standard of proof to be applied in secret trusts cases was also raised by Megarry VC. This aspect is discussed in detail below at II.i(b)(ii). 24 Above n. 19. 25 From Thynn v Thynn (1684) 1 Vern 296 to De Bruyne v De Bruyne, above n. 3. See Appendix for details. 26 McCormick v Grogan (1869) LR 4 HL 82 and Cullen v Attorney General for Ireland (1866) LR 1 HL 190. 27 Blackwell v Blackwell, above n. 1. 28 Above n. 19. 29 Re Snowden has been applied in several judgments in other common law jurisdictions. See, for example, Glasspool v Glasspool Estate 1988 CanLII 1438, BC SC; Bellinger v Nuytten Estate 2002 BCSC 571; Chinn v Hanrieder 2009 BCSC 635; Child Support Register & Kanavos & Ors FMCAfam 871 (20 August 2009); Howell v Hyde NSWSC 732; Brown v Pourau 1 NZLR 352; Quinn v Dean, unreported High Court Wellington Registry A 123/84 July 1986, cited in N. Richardson, 'Secret Trusts in New Zealand' Canterbury Law Review 6. 30 The Statute of Frauds came into force in 1677. The Statute introduced compulsory formality requirements for testamentary dispositions of land (s. 5) and also greatly restricted the circumstances in which nuncupative wills of personalty could be validly created. Although cases concerning secret trusts began to appear almost immediately, the reports from this period are extremely brief. In both Thynn v Thynn, above n. 24, and Devenish v Baines (1689) Prec Ch 3, reference is made to the prevention of 'fraud' as being the reason why the trusts were enforced, and in Pring v Pring (1689) 2 Vern 99, the only relevant half-secret trust case from this period, it was held to be 'unjust' for the secret trustee to rely on the Statute of Frauds to avoid performance of the secret trust. Other early cases include Dutton v Pool (1677) 1 Ventr 318, Chamberlaine v Chamberlaine (1678) 2 Freeman 34 and Crook v Brooking (1688) 2 Vern 50. 31 (1748) 1 Ves Sen 123. 32 Ibid. at 125. 33 (1705) 2 Freem Chy 284. The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) 34 Ibid. at 285 per Wright LK. 35 (1747) 3 Atk 539. 36 (1739) 1 Atk 448. 37 Ibid. at 449. 38 Ibid. at 449. This refutes arguments such as that of Challinor, above n. 9 at 297, who considers the 'fraud on the testator' argument to be 'a bald assertion that a testator's wishes should be put into effect in a manner that is not acceptable'. 39 The comments of Lord Arden in Barrow v Greenough (1796) 3 Ves Jun 152 at 154 and Lord Cowper in Sellack v Harris (1708) 20 Eq C Abr. 46 at 48 also support the 'fraud on the testator' approach. Cf. Jones v Nabbs (1718) Gilb Rep 146, a judgment that is incongruous with all other judgments from the era and has not been followed. 40 See, for example, Andrews, above n. 11; Challinor, above n. 9; Pearce and Stevens, above n. 9; P. Pettit, Equity and the Law of Trusts, 10th edn (Oxford University Press: Oxford, 2005) ch. 7; Martin, above n. 9; Hudson, above n. 13. See also Rickett, above n. 20. 41 See above n. 14. 42 (1801) 6 Ves Jun 53. 43 The category of secret trust cases, referred to throughout this work as 'Mortmain cases', must be explained here. The Mortmain Act 1736 essentially prohibited devises of land to charities or in trust for charitable purposes (see section 1). There are a number of cases in which a testator devised land to a legatee, subject to an agreement outside of the will that the legatee would use the land for charitable purposes. Typically, the action would be brought by the residuary legatees who would claim that the legatee in question took the land subject to a binding secret trust for charitable purposes. If this claim was upheld, the land in question would be held by the would-be secret trustee on resulting trust for the testator's estate on the grounds that it was an illegal devise. 44 Above n. 41 at 69. Lord Eldon echoes this reasoning in Stickland v Aldridge (1804) 9 Ves Jun 517 at 519. 45 (1813) 2 Ves & Bea 259. 46 Ibid. at 262. 47 (1868) LR 3 Ch App 362. 48 (1855) 2 K & J 313 at 321. 49 (1852) 10 Hare 204 at 211–12. 50 Above n. 46 at 364. 51 Ibid. The original passage from Sir Page Wood was also quoted with approval by Lord Romily in Proby v Landor (1860) LR 3 Ch App 362 and in Rowbotham v Dunnett (1878) 8 Ch D 430. This shows the great consistency during this period. 52 Above n. 25. 53 Ibid. at 198. 54 Above n. 25. 55 See Re Snowden, above n. 19, and, by extension, those judgments relying on Re Snowden. See above n. 22 and n. 28 for example. This idea is extremely prevalent among commentators. See, especially, Challinor, above n. 9; Pearce and Stevens, above n. 9; Martin, above n. 9; Hudson, above n. 13. Note also that Wilson, above n. 10 at 251 and 253, proposes that Lord Westbury may have merely meant that it must be possible to demonstrate that the secret trustee intended to deceive the testator. 56 Above n. 25 at 89. The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) 57 Ibid. 58 Ibid. at 97. 59 Ibid. 60 Ibid. 61 Ibid. at 98. 62 Note that Lord Hatherley was known as Sir Page Wood prior to becoming Lord Chancellor. See his judgments in Wallgrave v Tebbs, above n. 47 at 321; Tee v Ferris at (1856) 2 K & J 357 at 367–8. 63 Above n. 25 at 88. 64 Ibid. at 97. 65 Ibid. at 98. 66 Ibid. at 97. 67 Ibid. This undermines the assertion by Martin, above n. 9 at 171, that 'it is not sufficient to say as did Lord Sumner in Blackwell v Blackwell that secret trusts are based on the essential elements of intention, communication and acquiescence'. See below, Part V, for further explanation as to the requirements for secret trusts. 68 Ibid. 69 Lord Westbury, then Sir Richard Bethell, served as Solicitor General between 1852 and 1856. 70 Lomax v Ripley (1855) 3 Sm & Gif 48 at 63. It appears from the report that these are Sir Richard Bethell's words. If not, the only other likely explanation is that this is part of what is apparently a joint submission from counsels for the various defendants. 71 Ibid. at 64. 72 Above n. 25 at 198. 73 Above n. 25 at 99. Lord Cairns did not give a full speech. 74 Lord Cairns's view of the nature of the fraud is clear. See above, text to n. 50. 75 See above n. 54. 76 Ibid. Also, as regards the standard of proof, see above n. 22 and n. 28. 77 (1873) LR 15 Eq 318. 78 Ibid. at 330. 79 Ibid. at 331. 80 Above n. 25. 81 (1884) LR (1884) LR 26 Ch D 531. 82 Above n. 25. 83 Above n. 80 at 535. 84 Above n. 25. 85 Above n. 41. 86 See above, text to nn. 41 and 43. 87 The testator's residuary estate of realty, including a manor and an estate in a place called Overseal, was devised, apparently absolutely, to the defendants. A subsequent codicil, however, devised a farm to the defendants 'upon trust for the like uses and purposes as my manor and estate at Overseal now stand limited'. The bill alleged that the estate The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) at Overseal was subject to a secret trust in favour of a charity. See above n. 41 at 64–6 for Lord Eldon's consideration of this point. 88 Above n. 41 at 69. 89 (1836) 8 Sim 644. 90 Ibid. at 656–60. 91 (1826) 1 Russ 266. 92 Ibid. at 271. 93 Ibid. at 270–1. 94 Jones v Nabbs, see above at n. 38. Note that other cases were also cited, but none on incorporation by reference. 95 See Matthews, above n. 11 at 363. 96 Ibid. 97 (1851) 5 De G & Sm 84. 98 Ibid. at 90–1. 99 Ibid. at 91. 100 There is no requirement that, for a document to be incorporated into a will by reference, it must be communicated to the legatee. See In bonis Smart P 238PDAD at 240, cited in Martin, above n. 9 at 157, for a summary of the requirements for a document to be incorporated into the will by reference. 101 See Re Keen Ch 236, for a further example of an apparently properly communicated half-secret trust not being enforced due to inconsistency with the will. In Keen, the enforcement of half-secret trusts was unequivocally attributed to the prevention of fraud. 102 (1869) LR 8 Eq 673. See Re Young Ch 344 for another example of an orally communicated half-secret trust being enforced. These seriously undermine the incorporation by reference argument. 103 (1886) 2 TLR 660. 104 (1849) 3 De G & Sm 525. 105 Ibid. at 547. 106 Ibid. 107 Ibid. at 548. 108 (1880) LR (1880) LR 15 Ch D 594. 109 10 Ir Eq Rep 649. 110 Above n. 107 at 607. 111 Ibid. at 604. 112 That equity will not allow one man to profit from another's fraud (the rule in Huguenin v Baseley (1807) 14 Ves Jun 273) is a long-standing principle that has been invoked several times in secret trusts cases (e.g. in Tee v Ferris, above n. 61 at 367 per Page Wood VC; Blackwell v Blackwell, above n. 1 at 241 per Lord Warrington). 113 Presumably due to s. 15 of the WA 1837. See below, text to n. 243 for further discussion of this point. 114 This was included in the argument of Matthews, above n. 11 at 364–7, as was Hall VC's use of the word 'incorporated', above n. 107 at 608. This unfortunate choice of words cannot, when the judgment is read as a whole, be taken literally to mean that half-secret trusts are incorporated into the will by reference. 115 See above n. 12 and n. 13 for examples. The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) 116 Although note the comments of Kay J in Re Boyes, above n. 80 at 535–6. He appeared to endorse the view that fully secret trusts are enforced to prevent fraud and half-secret trusts are enforced for other reasons, although it is not stated or even hinted what those reasons are. This is not consistent with other judgments on fully secret trusts from the period. 117 See Re Stead 1 Ch 237 at 240 per Farwell J; Re Falkiner 1 Ch 88 at 96 per Tomlin J; Re Williams Ch 244 at 250–2 per Farwell J; Ottaway v Norman, above n. 7 at 709–11 per Brightman J. 118 See Re Pitt-Rivers 1 Ch 403 at 407 per Vaughan Williams LJ, Stirling LJ and Cozens-Hardy LJ concurred; Re Maddock 2 Ch 220 at 225 per Collins MR and at 227 per Stirling LJ; Re Gardner (No 1) 2 Ch 523 at 530 per Warrington LJ and at 534–5 per Younger LJ. 119 Above n. 116. 120 Above n. 25. 121 Above n. 116 at 241. 122 Ibid. at 240. 123 1 Ch 142. 124 At the insistence of the defendant, the testator destroyed a codicil that had revoked a power of appointment. He did this in reliance on the defendant's assurance that he would not exercise the reinstated power of appointment to the prejudice of the defendant. Neville J found in favour of the plaintiff, although the parties eventually settled. 125 Above n. 122 at 151–2. 126 Above n. 117. 127 Ibid. at 232 per Cozens-Hardy J. Curiously, Matthews does not cite this case when he proposes an estoppel- based justification for the doctrine. See Matthews, above n. 11 at 361. 128 Above n. 117. 129 Ibid. at 529 per Lord Sterndale MR. 130 Above n. 25. 131 Above n. 7. 132 Ibid. at 709–11. 133 Above n. 25 at 97. 134 Above n. 7 at 712. 135 Brightman J's comments regarding the adoption into English law of the 'floating trust', based on Birmingham v Renfrew (1937) 57 CLR 666 ought similarly to be disregarded, as they were, again, speculative and have not been followed. 136 Above n. 19. 137 Above n. 25. 138 Above n. 19 at 536. 139 Ibid. 140 See discussion of Blackwell v Blackwell, above n. 1 and below, text to nn. 142–9. Their Lordships did not consider or apply an extraordinary standard of proof. 141 See above n. 22 for examples. 142 For English cases, see above n. 22. In fact, this problem is greater in some other common law jurisdictions. See above n. 28 for examples. The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) 143 The first two cases from this period, Re Huxtable 1 Ch 214 and Re Hetely 2 Ch 866, are both cases where the validity of the doctrine of half-secret trusts and the decision in Fleetwood, above n. 107, were inexplicably called into question. In neither judgment was Fleetwood expressly overruled, however, and in neither case were any reasons offered as to why Fleetwood might be incorrect. Thus, neither has any effect on the submissions that have been put forward here. 144 Above n. 1. 145 I.e. before the execution of the will. 146 Above n. 1 at 328. Note the second 'equally' in Lord Buckmaster's quote. Wilson, above n. 10 at 261, suggests that the argument that the fraud in question is fraud on the beneficiary is 'circular'. The answer to this is that while any failure to perform the secret trust would amount to a fraud on the testator, the secret beneficiaries would be injured by this fraud as well. 147 Above n. 1 at 341. 148 Ibid. Lord Warrington also reiterates this point at 341. 149 Ibid. at 335. 150 Above n. 1. See above nn. 9–18 and accompanying text for a summary and examples of the various academic views on the doctrine. 151 Re Keen, above n. 100 at 244 per Lord Wright MR; Romer LJ and Greene LJ concurred; Re Cooper Ch 811 at 815 per Green MR; Clauson LJ and Goddard LJ concurred; Young, above n. 101 at 349 per Dankwerts J. 152 Taylor v Revenue & Customs Commissioners, above n. 4; Davies v Revenue and Customs Commissioners, above n. 4. 153 1 WTLR 333. 154 Ibid. at para. 27, official transcript. 155 WTLR 849. 156 Mutual wills were described by Nourse J in Re Cleaver 1 WLR 939 at 940 as arising 'where … two persons … made an enforceable agreement as to the disposal of their property and executed wills in substantially identical terms in pursuance thereof'. 157 Above n. 154 at 907 per Donaldson QC sitting as a Deputy High Court Judge. 158 Above n. 3. 159 The appellant (Mrs De Bruyne) appealed against an ancillary order that certain assets were not matrimonial assets. The respondent (Mr De Bruyne) had, along with two others, been a beneficiary of a discretionary trust established by his father. The trust property consisted of shares and other property. In 1991 the three beneficiaries agreed to dissolve the trust. The agreement was that the other two beneficiaries would take certain property and Mr De Bruyne would hold the shares for the benefit of his children. Mr De Bruyne, however, upon obtaining the shares, transferred them to Mrs De Bruyne, as his nominee, who sold them. Certain assets were purchased with the proceeds of sale. These assets were the subject of the appeal. The respondents maintained that the assets were held on constructive trust for the children. The appeal was dismissed. 160 Above n. 3 at 51. This seriously undermines the arguments of McFarlane, above n. 11 at 676 and Hudson, above n. 13 at 243. Both attempt to separate fraud from unconscionability, arguing that secret trusts are enforced as constructive trusts to prevent unconscionable conduct by the secret trustee, rather than fraud. 161 It is interesting to note that Australia's highest court has also accepted the 'fraud on the testator' argument. See Voges v Monaghan HCA 63 per Fullagar and Kitto JJ. As in England, questions inexplicably continue to be raised regarding the nature of the fraud and the standard of proof. See Howell v Hyde NSWSC 732 and Child Support Registrar & Kanavos & Ors FMCAfam 871 for examples of this apparent unwillingness to accept the The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) judgment of the highest court. The fraud on the testator approach has also been followed in Ireland. In fact, Fullagar and Kitto JJ directly quoted from the judgment of Lord Davey in French v French (1902) 1 IR 172 at 241. 162 See, for example, Critchley, above n. 9 at 652; McFarlane, above n. 11. 163 See above n. 22 and n. 28 for examples. 164 See Sheridan, above n. 11; Matthews, above n. 11. 165 See Perrins, above n. 11; Andrews, above n. 11. 166 See Critchley, above n. 9; Challinor, above n. 9. 167 See McFarlane, above n. 11 at 676; Hudson, above n. 13 at 224. It is also clear that the constructive trust arises at the moment of the testator's death due to the danger of fraud. This undermines Hudson's argument that fraud cannot be the justification for the doctrine because fraud theory operates on the basis that a trust obligation arises only when 'a claim of fraud' is brought against the secret trustee, i.e. as a 'form of restitution'. This, he surmises, is incorrect because, in reality, the secret trustee becomes a trustee at the death of the testator, regardless of any subsequent court proceedings. See also below, Part V, for further explanation of this point. 168 See especially Critchley, above n. 9 at 653; Challinor, above n. 9 at 497. 169 Above n. 30. 170 Ibid. at 125. 171 Above n. 88. 172 Ibid. at 655. 173 Above n. 47. 174 Ibid. at 322. 175 This point is made by Wilson, above n. 10 at 13, but is not widely accepted. 176 Above n. 42. 177 See above n. 43. 178 Ibid. at 519. 179 See Boson v Statham (1760) 1 Cox 16 at 18–20; Wallgrave v Tebbs, above n. 47 at 321–8; Adlington v Cann (1744) 3 Atk 141 for further examples. 180 Above n. 1. 181 Ibid. at 338. 182 Chamberlaine v Chamberlaine, above n. 29 at 35 per Lord Nottingham. 183 Walpole v Orford (1797) 3 Ves Jun 402 at 410. The Solicitor General made this comment in relation to an apparently unreported secret trust case from the time of Lord Nottingham called Berenger v Berenger. 184 This also undermines the argument to the effect that the legislature ought to intervene and place the doctrine on a statutory footing. See Martin, above n. 9 at 175. 185 Re Spencer's Will (1887) 57 LT 519 at 521. 186 See particularly Matthews, above n. 11, and Perrins, above n. 11. For an elaborate justification of the differing communication requirements, see D. Wilde, 'Secret and Semi-Secret Trusts: Justifying the Distinctions between the Two' Conv 366. 187 See above n. 8; Johnson v Ball, above n. 96; Re Hetely, above n. 142; Re Keen, above n. 100; all of which provide the same explanation as that of Viscount Sumner in the text to n. 188 below. The rule was also applied in Re Bateman's WT 1 WLR 1463. The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) 188 Above n. 1. 189 Ibid. at 339. 190 It must be said that judges in several common law jurisdictions have reached a different conclusion regarding the communication requirement. For Ireland, see Re Browne IrR 90; for New South Wales, Ledgerwood v Perpetual Trustee Co Ltd (1997) 41 NSWLR 532; and for the United States of America, see American Law Institute, Restatement of Trusts 55, 2nd edn 1959, comment (c), (h). All of these references are cited in Martin, above n. 9 at 167, nn. 75–77. 191 In particular, in Re Keen, above n. 100, the fraud theory and the communication requirement were accepted by the Court of Appeal. 192 See above n. 189 for examples of jurisdictions where the communication rule for half-secret trusts is the same as for fully secret trusts. 193 E.g. Boson v Statham, above n. 178; Russell v Jackson, above n. 48. 194 I.e. a statement or act capable of contributing towards the creation of a valid enforceable secret trust. 195 Above n. 1. 196 Ibid. at 334. 197 See, for example, Sweeting v Sweeting (1863) 33 LJ Ch 211; Re Spencer's Will, above n. 184; Re Keen, above n. 100; Re Young, above n. 101; Ottaway v Norman, above n. 7. 198 See above n. 9 for examples. 199 This point is made by Viscount Sumner in Blackwell v Blackwell, above n. 1 at 337 and also by Wilson, above n. 10 at 261. 200 See especially Critchley, above n. 9. 201 See especially Pearce and Stevens, above n. 9 at 224–9. 202 See especially Sheridan, above n. 11; Andrews, above n. 11; McFarlane, above n. 11; Hudson, above n. 13. 203 See especially Critchley, above n. 9. Also, for example, Martin, above n. 9 at 155, describes secret trusts as 'Testamentary Gifts not complying with the Wills Act 1837'. 204 See especially Critchley, above n. 9 at 634. 205 For examples of debates on this, see especially W. Holdsworth, 'Secret Trusts' (1937) 53 LQR 501; Holdsworth, above n. 9; Critchley, above n. 9; Kincaid, above n. 16; Challinor, above n. 9. 206 Above n. 44. 207 Ibid. at 263. 208 Above n. 90. 209 Ibid. at 270–1. 210 Above n. 103. 211 Ibid. at 527. 212 Above n. 69. 213 Ibid. at 76. 214 Ibid. 215 Above n. 117. 216 Ibid. at 224. This contradicts what is stated about the case by Challinor, above n. 9 at 497, who suggests that Maddock is an authority that suggests that a secret trust is not dehors the will because 'it was treated as if it had been The Secret is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law CLWR 40 4 (311) made by will'. In Maddock, however, it was emphasized that although the secret trust was, for the purposes of the litigation, being treated as part of the will, it was in fact not part of the will. This authority supports the assertion that a secret trust is dehors the will. 217 See above n. 186. 218 Ibid. at 1468. 219 Above n. 150. 220 Ibid. at 819. 221 Re Maddock, above n. 117, has been cited as authority that secret trusts are testamentary dispositions (e.g. by Challinor, above n. 9). In fact, the secret trusts were merely treated as part of the testamentary disposition for the purposes of the litigation. 222 Above n. 47. 223 Ibid. at 326. See also Tee v Ferris, above n. 61 at 366 per Sir Page Wood VC; Whitton v Russell, above n. 35 at 449 per Lord Hardwicke. 224 (1861) 1 J & H 352. 225 Ibid. at 366. 226 Above n. 103. 227 Ibid. at 547. 228 See McCormick v Grogan, above n. 25; Blackwell v Blackwell, above n. 1. 229 For examples, see above n. 16. 230 For a comprehensive list of theoretical reasons why secret trusts are not express, see R. Burgess, 'The Juridical Nature of Secret Trusts' (1972) 263 Northern Ireland Legal Quarterly 23. 231 They should, of course, comply with statutory formality requirements for inter vivos trusts. This is another controversial point, although one which is addressed by the classification of secret trusts as constructive trusts (see III.iii below). 232 See especially Pearce and Stevens, above n. 9 at 224–9, for a summary of this line of thinking. 233 Johnson v Ball, above n. 96 at 91 per Parker VC. 234 Above n. 1. 235 Ibid. at 325. 236 Above n. 117 at 407. 237 Above n. 25. 238 The wording of the Stamp Act in question (5 & 6 Vict. c. 82 s. 38 and 8 & 9 Vict. c. 76 s. 4) stated that the exemption from duty applied to 'a gift by any will or testamentary instrument'. 239 See Critchley, above n. 9 at 641. 240 Cullen, above n. 25 at 198. 241 Ibid. at 197–8.