1. Wills
   1. S 9 Wills Act 1837 Will is invalid unless:
      1. (a) It is in writing and signed
      2. (b) Testator intended to give it effect
      3. (c) signature has witnesses
      4. (d) Each witness either:
         1. Attests and signs
         2. Acknowledges his signature to the testator
      5. Applies not only to the declaration of trusts but also to the transfer of title to the intended trustee. A dead person cannot be a trustee. Trust must state:
         1. Who the trustee is
         2. The Terms of the trust
         3. The exception is Secret Trusts
            1. For Example
            2. Similar to Rouchefoucauld -v- Boustead
      6. All are required
   2. May reference other documents (incorporation by reference)
2. Why are they exceptions?
   1. Prevent Fraud on the part of the trustee
      1. Equity will not permit a Statute to be used as an instrument of fraud (McCormick -v- Grogan (1869)
      2. Problems
         1. Only works where trustee is seeking to deny the trust
         2. Giving effect to the trust is not the only way to prevent fraud. Why not resulting trust?
            1. Defeats intentions
            2. Testator is dead Can't try again
            3. Fraud argument is really unjust argument
            4. Explains the decision but not the form
   2. They arise and operate 'dehors' of the will and do not invoke the formality rules
      1. The trust has nothing to do with the formality requirements It was created during the Testators lifetime
      2. Follow the normal requirements for trusts Do not require writing or attestation
      3. Do Secret Trusts of Land need to satisfy S 53 (1) (b) LPA [1925]?
         1. Re Baillie (1886) Half-Secret Trusts do.
            1. However, could apply the principle in: Rouchfoucauld -v- Boustead [1897]
         2. Ottoway -v- Norman [1972] Half-Secret Trust upheld (with no discussion on the point)
      4. Has support in cases: Blackwell -v- Blackwell [1929] Re Young [1951]
      5. All that prevents the trust taking effect is the transfer of property
         1. Fails to interpret the true intention Testator only intends the trusteeship to take effect on death
3. Problem Cases
   1. For Example: Precatory words
      1. Intention clear
         1. Half Secret Fails (Re Keen [1937]) Uncertainty
      2. Intention unclear
         1. Fully Secret may succeed Intention is not derived from the will therefore not uncertain
4. Fully Secret Trusts
   1. No evidence of Trust in the will
   2. Will appears to give property absolutely
   3. For Example:
   4. Can be created where there is no will under rules on intestacy
5. Common Characteristics
   1. Take effect on death
   2. Exceptions to S9 Wills Act [1837]
   3. Are dehors of the will
6. Half Secret Trusts
   1. Evidence of Trust in the will but not beneficiary
   2. For Example:
7. Basic Requirments
   1. (a) A's intention that B holds the property on trust for C
      1. Normal test is balance of probabilities
         1. Re Snowden [1979] Megarry held that the exception is where the trust can only be shown by fraudulent action this is unnecessary
   2. (b) A's communication to B of trusteeship
      1. Fully Secret Trusts
         1. Terms of the trust must be communicated and accepted prior to Testator's death.
      2. Half-Secret Trusts
         1. Terms of the trust must be communicated and accepted prior to or at the same time as the execution of the will
         2. Terms must be consistent with earlier instructions
         3. Re Keen [1937]
            1. Rules endorsed in Re Bateman's Will Trusts [1970]
      3. Normally no requirement of communication Intended Trustee can decline results in appointment of new trustee
      4. Sealed envelope containing details is sufficient Re Boyes (1884) Re Keen [1937]
         1. knowledge of an envelope which is not given but later discovered after death is insufficient Re Boyes (1884)
      5. Communication to multiple Trustees
         1. Re Stead [1900] acceptance by B1 as joint tenant is sufficient regardless of B2's ignorance
         2. Re Stead [1900] If communication is after death or B1 and B2 take as tenants in common only binds B who accepts
      6. Re Colin Cooper [1939] Only extends to property that B has agreed to hold on trust
         1. Extra property must be communicated and accepted Otherwise the trust fails.
            1. Failure of Secret Trusts
            2. Half Secret: Resulting Trust to A's estate Re Boyes (1884)
            3. Fully Secret: B keeps property
   3. (c) B's acceptance
      1. tacit acquiescence is sufficient
      2. Revocation of acceptance
         1. Re Maddock [1902] Secret trust fails if B dies or disclaims trusteeship prior to A's death.
         2. Blackwell -v- Blackwell [1929] Court would not let this defeat the trust
            1. Particularly where there is insufficient time to make other arrangements
   4. Secret Trust must fulfill certainty requirements
      1. Normally trust fails when Beneficiary is dead This may be different in Secret Trusts
         1. Re Gardner [1923] (was probably wrongly decided)