Challinor Debunking the Myth of Secret Trusts 2005 Cony 492 RA Pearce and J

Challinor debunking the myth of secret trusts 2005

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(1999) 115 LQR 631; E. Challinor, 'Debunking the Myth of Secret Trusts' [2005] Cony 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, 18 th edn. Although they have also been proposed as being complementary: - Look at J.G. Fleming , 'Secret Trusts' (1947) 12 Cony 28; S. Wilson, Todd and Wilson's Textbook on Trusts, 9th edn (Oxford University Press: Oxford, 2009) ch. 10. 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 general accepted view is that fraud must involve personal gain by the secret trustee. 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
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because they are incorporated into the testator's will under the probate doctrine of incorporation by reference.
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