A secret trust is a trust which arises when property is left to a person (the

legatee A legatee, in the law of wills, is any individual or organization bequeathed any portion of a testator's estate. Usage Depending upon local custom, legatees may be called "devisees". Traditionally, "legatees" took personal property under will a ...

) under a

will Will may refer to: Common meanings * Will and testament, instructions for the disposition of one's property after death * Will (philosophy), or willpower * Will (sociology) * Will, volition (psychology) * Will, a modal verb - see Shall and will ...

on the understanding that they will hold the property as

trustee Trustee (or the holding of a trusteeship) is a legal term which, in its broadest sense, refers to anyone in a position of trust and so can refer to any individual who holds property, authority, or a position of trust or responsibility for the ...

for the benefit of

beneficiaries A beneficiary in the broadest sense is a natural person or other legal entity who receives money or other benefits from a benefactor. For example, the beneficiary of a life insurance policy is the person who receives the payment of the amount of ...

who are not named in the will. Secret trusts are divided into two types: *''Fully secret trusts'', where the will is totally silent as to the existence of a trust; and *''Semi secret trusts'' or ''half secret trusts'', where the will provides that the legatee is to hold the property on trusts, but does not specify the terms of the trust or the beneficiary. Secret trusts are something of a historical anachronism. They arose because in most

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

jurisdictions, wills are public documents after they have been admitted to probate, and where the testator wishes to leave a legacy to (for example) a mistress or an illegitimate child without causing pain or embarrassment to his family, he could devise the property to a trusted person to avoid the name of the mistress or illegitimate child appearing in the will. They fall outside of the Wills Act. Despite their rarity, secret trusts still remain a staple of many law courses at university level, as they represent a rare exception to the rule that any disposition on

death Death is the end of life; the irreversible cessation of all biological functions that sustain a living organism. Death eventually and inevitably occurs in all organisms. The remains of a former organism normally begin to decompose sh ...

must be by way of a will (or a document incorporated by reference into a will) which complies with the applicable statutory requirements in the relevant jurisdiction.The other main exception, also a historical anachronism rarely seen in modern times, is a '' donatio mortis causa'' Historically, the courts have felt it more important to uphold the rights of the putative beneficiary and to avoid the

unjust enrichment Restitution and unjust enrichment is the field of law relating to gains-based recovery. In contrast with damages (the law of compensation), restitution is a claim or remedy requiring a defendant to give up benefits wrongfully obtained. Liability ...

of the legatee than to uphold the general rule of

public policy Public policy is an institutionalized proposal or a Group decision-making, decided set of elements like laws, regulations, guidelines, and actions to Problem solving, solve or address relevant and problematic social issues, guided by a conceptio ...

that property must devolve by will on death. The All-Woman Supreme Court in Texas was convened to deal with the results of a secret trust.

Footnotes

{{law-stub Wills and trusts

See also

Footnotes