The Secret is out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law

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.