Journal 2.docx - KEEPING SECRETS A CRITICAL ANALYSIS OF THE JUSTIFICATIONS FOR THE DOCTRINE OF SECRET TRUSTS Ho Siu Secret trusts give effect to a

Journal 2.docx - KEEPING SECRETS A CRITICAL ANALYSIS OF THE...

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KEEPING SECRETS: A CRITICAL ANALYSIS OF THE JUSTIFICATIONS FOR THE DOCTRINE OF SECRET TRUSTS Ho Siu Secret trusts give effect to a testator’s express intentions that are not contained in the will. McGhee defines secret trusts to be a device by which the testator’s intention to create a testamentary gift by way of trust may be enforced despite non-compliance with the formalities of due execution of a will under the Wills Act 1837 - John McGhee, Shells Equity (32nd edn, Sweet & Maxwell 2010) para 24-023 Typically, secret trusts arise where a testator dies leaving a legacy to a legatee under a will on the understanding that the legatee will hold the property on trust for the benefit of beneficiaries who are not named in the will. Historically, fully secret trusts were recognised by the courts on the basis of fraud.
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