This is a summary of the judgments by the House of Lords in 1929 in Blackwell v Blackwell [1929] A.C. 318 it is assumed the facts are known but hopes to illustrate the reasoning of the case for the enforcement of half secret trusts and perhaps their different rules.

LORD BUCKMASTER.

The principle of not allowing parol evidence to contradict the will cannot apply so strongly where it is clear on the face of the will that the legatee is holding the property under a fiduciary duty. The fraud is on the real beneficiaries and also on the testator. His Lordship doubted that even when there was no evidence on the face of the will of a trust that an intended trustee would not be able to renounce the fiduciary obligation; so that the benefit to the legatee cannot be the only factor in deciding the evidence that can be relied upon. His Lordship refers to earlier authority (Crook v Brooking 1688) where it appears a half secret trust was enforced.

VISCOUNT SUMNER.

Equity allows parol evidence for secret trust to prove ‘fraud’ which does not conflict with legislation regulating testamentary disposition. This seems to be a perfectly normal exercise of general equitable jurisdiction. For the prevention of fraud equity fastens on the conscience of the legatee a trust, a trust, that is, which otherwise would be inoperative.

‘Why should equity forbid an honest trustee to give effect to his promise, made to a deceased testator, and compel him to pay another legatee, about whom it is quite certain that the testator did not mean to make him the object of this bounty?’

In both fully and half secret trusts ‘the testator's wishes are incompletely expressed in his will. Why should equity, over a mere matter of words, give effect to them in one case and frustrate them in the other? No doubt the words "in trust" prevent the legatee from taking beneficially, whether they have simply been declared in conversation or written in the will, but the fraud, when the trustee, so called in the will, is also the residuary legatee, is the same as when he is only declared a trustee by word of mouth accepted by him’.

His Lordship then makes reference to Lord Cairns suggestion that equity will not allow a statute to be an instrument of fraud, and to the decision of Lord Hatherley in McCormick v Grogan on the basis of secret trusts in fraud. ..’ the jurisdiction of Courts of Equity to interpose in all cases of fraud,’

The evidence which the court of equity will admit to fill the gaps left by the testator’s will are to enforce the obligations on the conscience of the legatee. The Wills Act does not prescribe how a trust must be created or the application of the general law of trusts to interests created by wills.

As to the timing of the declaration

‘A testator cannot reserve to himself a power of making future unwitnessed dispositions by merely naming a trustee and leaving the purposes of the trust to be supplied afterwards, nor can a legatee give testamentary validity to an unexecuted codicil by accepting an indefinite trust, never communicated to him in the testator's lifetime:’

This could have two interpretations – that the testator must make the will naming the trustee and supply, at the time or before execution of the will (the date the will is signed and witnessed to comply with s9 Wills Act 1837) the purpose of the trust but the second half of the sentence suggests that it would be sufficient for it to be in their lifetime.

Accordingly in my opinion the appeal fails on all grounds.

LORD WARRINGTON OF CLYFFE.

Noted two issues a) the validity of the trust and b) the communication to only four trustees before the execution of the codicil and the fifth after.

As to a) the basis of the enforcement is fraud and that on b) it is immaterial as to the timing of the communication (His Lordship is referring to fully secret trust precedent).

Do these principles apply to half secret trusts? ‘I think the solution is to be found by bearing in mind that what is enforced is not a trust imposed by the will, but one 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. If the evidence had merely established who were the persons and what were the purposes indicated it would in my opinion have been inadmissible, as to admit it would be to allow the making of a will by parol. It is the fact of the acceptance of the personal obligation which is the essential feature, and the rest of the evidence is merely for the purpose of ascertaining the nature of that obligation.’

He continues ‘I think the answer is that, if it would be a fraud on the part of the legatees to refuse to carry out the trust, the residuary legatees cannot take advantage of and thus make themselves parties to such fraud

For these reasons I think that this appeal should be dismissed with costs.

LORD BUCKMASTER.

My Lords, my noble and learned friend Lord Carson desires me to say that he agrees with the views that have already been expressed.

Timing of the Communication

There are arguments to be made that the different rules for the timing of communication are not actually binding precedent. In both Blackwell v Blackwell and Re Keen it has been argued that the ratio does not actually require the communication to be before the execution of the will. Re Keen is talking of the need to make sure wording of the will is consistent with the facts. So if the will says ‘on terms I will tell the trustee’ but the communication has actually been made before the will was written then the facts and writing are inconsistent. However, if the will said ‘on terms I will tell the trustee’ and the trustee is actually informed after the execution of the will then this is consistent with the facts, so should be valid.

It is important to be able to address this issue in both essays and problem questions.