The fraud theory cannot justify a secret trust as they are in themselves a fraud on the requirements of the Wills Act 1837. Discuss.

Introduction: Explain the basic requirements of the Wills Act, public documents which concern the transfer of a person's property after their death.

Explanation of secret trusts and how they operate outside the requirements of the Wills Act. Explain the two classes, fully and half-secret trusts.

How can the two concepts be reconciled. Mention the basis of equity to do 'justice' and consider if secret trusts achieve this. Look at McCormick v Grogan as early as 1869 recognizing the basis as prohibiting fraud, which is reflected in other areas, such as application of s53 (1) b LPA 1925 and the application of the principles of Rochefoucauld v Boustead 1897. Echoes of estoppel may be mentioned and perhaps even Pennington v Waine.

Analyse who is being defrauded by the denial of the secret trust, in half-secret trusts the trust is apparent but in fully secret no one but the secret trustee may be aware of the trust.

The testator is trying to avoid the Wills Act, can it really be enforced to enable secret families to be protected? It may be justified in the situations such as the Duchess of Suffolk found herself but should that be extended this far? Is the testator coming to equity with clean hands?

The beneficiary may not know so it may not be a fraud against them. Consider if there is no fraud if only the secret trustee knows he is breaking a promise.

Conclude with your view of the justification of secret trusts.