1. Secret trusts
   1. Legatee holds on trust for ultimate beneficiary
      1. Legatee also known as secret trustee
   2. Fully secret
      1. No mention that held on trust
      2. Elements
         1. Intention of testator
            1. Must intend court sanction
            2. Family or moral obligation not sufficient
            3. McCormick v Grogan (1876)
            4. May intend legacy to be passed immediately
            5. Or to be passed in legatee's will
            6. Ottaway v Norman [1972]
            7. Ordinary civil standard of proof applies
            8. where no suggestion of fraud on part of legatee
         2. Communication
            1. Testator must communicate obligation to secret trustee
            2. Before testator's death
            3. Wallgrave v Tebbs
            4. Re Boyes
            5. Terms may be given in sealed envelope
            6. Re Keen [1937]
            7. And secret trustee must accept
            8. Silence can amount to acquiescence
   3. Half secret
      1. Will indicates is held on trust
      2. Blackwell v Blackwell [1929]
         1. Intention
         2. Communication
            1. Must take place before will is signed
            2. Sealed envelope is acceptable
            3. If not communicated, gift falls into residue
         3. Acquiescence
            1. Must take place before will is signed
   4. Theoretical basis
      1. Bypasses Wills Act
         1. s9 Wills Act 1837
            1. in writing
            2. signed
            3. witnessed
      2. Equity will not allow a statute to be used as an instrument of fraud
         1. Rochefoucauld v Boustead
         2. McCormick v Grogan (1876)
      3. Operates 'dehors' the will?
         1. Inter vivos declaration of trust
         2. Trust constituted when property vested in trustee
         3. Re Young [1951]
            1. Secret gift to witness was not void
            2. Contrary to s15 Wills Act
            3. May prevent secret trust being constituted if gift is void
            4. Wold not apply to half-secret trust as only applies to beneficial gifts
         4. Re Gardner (No 2) [1923]
2. Mutual wills
   1. Re Dale [1994]
      1. Subject matter of agreement is specified
      2. Held on trust for beneficiary from death of T1
      3. On T2's death, held by personal reps on trust for beneficiary
   2. Contract between T1 and T2 is required
      1. Re Goodchild [1997]
      2. However...
         1. Healey v Brown (2002)
            1. Share of flat left to niece
         2. Contract not in writing
            1. s2 LP(MP)A 1989
         3. Common intention constructive trust
            1. would be unconscionable to go back on agreement
            2. Only applied to T1 share of flat
      3. Consideration
         1. Re Dale [1994]
            1. Both left all estate to children
            2. T1 provides consideration by not revoking will
            3. T2 cannot then renege on agreement
            4. Mutual benefit not necessary
   3. Must be evidence of mutual intention
      1. Onus is on those claiming mutual wills
      2. i.e. a signed memorandum
         1. preferable to also mention in wills
   4. Trust in favour of agreed beneficiary
      1. Arises on death of T1
      2. From that point, would be fraudulent to renege
      3. Fraud does not lie in T2 receiving benefit, but in allowing T1 to die thinking the agreement is binding
      4. What property is covered?
         1. Uncertain
         2. Not limited to property inherited from T1
      5. What rights does T2 have?
         1. Rights of full ownership
         2. But not gifts to defeat the intention of the agreement
      6. S1 Contracts (Rights of Third Parties) Act 1999
         1. Possible alternative enforcement mechanism