Secret trusts and testamentary freedom

Abstract

Abstract Secret trusts are a mystery because no theory perfectly explains why the court enforces them when they do not comply with the statutory formalities of wills. This article argues that secret trusts are inter vivos express trusts. If secret trusts fulfil their formalities, the courts will enforce them because they reflect the testator’s intentions of disposing his/her properties at death, sharing the same policy considerations of the Wills Act 1837. This article illustrates how equity facilitates the validity of secret trusts, whilst also limiting its scope to give the courts guidance on when to enforce them to preserve testamentary freedom.