Problem with Categorizing the Secret - Assignment Example

 “There is a problem with categorizing the secret (and half secret) trust and ascertaining its jurisprudential basis”. Critically analyze the jurisprudential basis. INTRODUCTION A trust is a legal agreement in which the testator intends to provide benefit to the beneficiaries according to his wish through trustee. The legatee will generally act as a trustee and would serve as an effective instrument in transferring the property of testator to the beneficiaries. Trust is an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner.1 At its simplest, a trust is a device in which rights, either personal (e.g. a right to be repaid by a borrower) or proprietary (e.g. a fee simple or lease of land) are held by one person on behalf of another (Penner and Swadling, 2007). The person creating the trust is called the settler, the person holding the rights is the trustee, and the person for whom those rights are held is the beneficiary. Moreover, the conception of trust is an amalgam of several ideas which relate equity, contract, obligation and law of property. The trust has several advantages over the will especially in passing the property rights to the genuine beneficiaries. This holds more relevant when secrecy has to be maintained for some reasons which is not possible in case of will. Of course, the creation of trust may result in some problems legally especially while categorizing the type of trust i.e. full secret trust or half secret trust. This necessitates the critical analysis of theoretical bases of formation of secret trusts, advantages of trusts over wills, differences between half secret and full secret trusts and some practically useful case studies. Theoretical bases for formation of trusts Preventing the fraud has been the main theoretical basis for trust formation (Hodge, 1980). At the same time, the wider and narrower views of fraud making during transfer of properties has to be kept in mind while formation of any trust. Some times, the trustee may try to cheat the settler by deviating from the norms actually mentioned in the trust (Bannister v Bannister, 1948). The main advantages of trusts over wills would also form the theoretical basis for formation of any trust. Some theories mention that the formation of trust and transfer of money or other assets to the beneficiaries would certainly aid in saving income tax and any other hidden taxes. Secondly, it offers the settler to maintain privacy and more importantly secrecy. This is quite remarkable in maintaining the safety of the beneficiaries. It is also conceptualized that the possibility of any intentional fraud can be minimized by formation of trust relative to the formation of a will. Trusts can be set up so that a beneficiary’s interest cannot be reached by his creditors in many situations. In addition, the trust property can be used for the benefit of others and may even pass to others after the settler’s death without the necessity of having a will. Another important consideration is that a trust can be used to provide for the needs of disabled beneficiaries who are not capable of managing funds. Similarly, trusts also afford greater opportunity for post gift management than do outright gives and bequest. The probate doctrine of incorporation by reference also forms crucial theoretical basis for the formation of trust (Mathews. 1979). One should also remember the possibility of difference in opinion regarding the time of formation of trust and definition of terms of the contract (Blackwell v Blackwell, 1929). Though there were problems noticed with categorization of trusts i.e. full secret trusts and half secret trusts, they were solved successfully with the operation of Wills Act, 1837. No doubt, before the enactment of the Wills Act, 1837 there were vast scope of fraud and wrongs. In this context, one should focus on Sec. 9 of the Wills Act, 1837 that refers that the trust must be in written form and signed by the testator or by someone else in his presence and by his direction. There was also necessity of two or more witnesses at the time of signing or attesting themselves. This kind of legislation is an effective one to solve problems relating it. As the trust is always registered and in a written form and witnesses always present there is a little scope to misunderstanding and problems. Secret trusts operate outside the will so that a beneficiary under this who witnessed the will would not be deprived of his interest (Re Young, 1951). By resolving the distinction between full secret and half secret trust, the categorical problem has been vanished by this Act of 1837. However, its main role will be acknowledged in reducing the scope of the fraud. Full secret trust v Half secret trust The categorization problems regarding trust formation mainly arises due to difference in nature of full secret trust and half secret trusts. Both the express trust and implied trust jointly bear the conception of the secret trust. In general, the secret trust is mainly intended to avoid the fraud by ensuring the element of privacy and secrecy. There are several similarities between the full secret trust and the half secret trust such as communication, constructive communication and acceptance etc. However they have difference in nature of disclosure of information regarding the terms of the trust formation. Some times, the secrecy is maintained regarding the whole provisions i.e. beneficiary and other details, which will be categorized under full secret trust. In other words, a full secret trust in one where neither the existent, of a trust nor its terms are disclosed by the will or other instrument. In other cases, the secrecy will be kept only regarding the provisions, but the information on trust formation and trustee will be disclosed which will be called as half secret trust. In other words, a half secret trust is one where the, existence of the trust is disclosed by the will or other instrument but the terms are not. Jurisprudential basis of trust The jurisprudential basis of formation of trusts arises not only due to the distinction between full secret and half secret trusts, but also due to their difference or clash with the basic provisions of the Wills act (1837). It is relevant to note that the title of a beneficiary under a fully secret trust as well as under a half secret trust arises outside the will and is not testamentary. This gives a wide scope to clash between the secret trust formation and the Wills Act. The section 9 of the Wills Act, 1837 mentions that the validity of any will holds good as long as it is properly written and signed. But the secret trust maintains privacy and secrecy due to its objective of avoiding fraud and hence violate the provisions of the Wills Act. This is highly applicable in case of full secret trust relative to the half secret trust due to its nature of keeping the terms of whole contract or trust and existence of trust unavailable to public. Hence confusion arises in interpretation of several legal instruments relating to the applicability of trust formation like law of contact, law of will, law of property and equity. At the same time, the difference in nature of the full secret and half secret trust also leaves higher scope for ambiguity. In general, it is left to the discretion of court in deciding the category of trust i.e. secret and half secret trust. This is highly crucial as there is enormous scope for ambiguity in deciding the problems arises due to creation of a double ownership. There may be specifically more problems in analyzing the cases due to difference in rights of the trustee and beneficiaries and their related interpretation by the courts. Hence the categorization of the secret trust has to be considered, after the interpretation of the Law of Property Act and the Wills Act. The jurisprudential Basis of Trust should also consider the concept of equity. It is part of the law of equity; equity’s jurisdiction is not limited to Trusts. The rules which govern the law of trusts are drawn exclusively from Equity. But sometimes several knowledge of particular areas of the common law is needed, most particularly the rules of common law relating to the transfer of rights and liability regarding the unauthorized receipt of things over which another has a better property right. At the same time, the conception of contact also has to be given prior importance. It is also another Jurisprudential basis of the term of trust. No clear division exists between contract and trust, though some judges have attempted to draw one (Re Cook, 1965). Once there is an evidence of breach of trust, legal action can be initiated by the courts and there will not be any distinction between the `secret trustee' and a fraud (Re Gardener, 1920). The secret trustee may attempt to disburse the testator's property outside the terms of his instructions. In such circumstances, the courts might declare him a secret trustee for the testator, and enforce the trust obligations against him. The problems may arise due to violation in property law and may result in fraud as in case of Walsh v Londsdale (Gardner, 1987). Hence proper jurisprudence of secret trusts is essential in reducing the conflicts arising out of property law. One important aspect of the secret trust formation is that the oral agreement made between the trustee and settler may be considered valid under some provisions of law of Property Act 1925. Section 53(1)(b) of Property Act (1925) declares any oral declaration of a trust of land as void. Similarly, Section 53(1)(c) declares oral dispositions of equitable interests as void. However, Section 53(2) exempts implied, resulting and constructive trusts from this category, which means that the implied, resulting and constructive trusts have to be enforced though they fall under oral trust. These types of oral trust situations were observed in cases like Caunce v Caunce (1969), Hodgeson v Marks (1971) and Westduetsche v Islington BC (1996) Conclusion There have been several similarities between full secret trust and half secret trust in terms of advantages over wills, information relating to the terms of contract to legatee, communication process and legal binding nature of trust. However, there exists a slight distinction between them in disclosing the nature and extent of terms of trust formation. The constructive and express type of trusts also constitute the distinction between them. Both of them help in minimizing the fraud arises out of transfer of property form one generation to another through trustees. As there is ample scope for problems arising out of difference in interpretation of secret trusts between full secret trust and half secret trust in relation to property law, their critical analysis with specific examples of past case studies would be of immense advantage in this context. As the categorization of trusts would certainly influence the legal interpretation of transfer of property and hence the courts have been given enormous discretion powers to interpret the classification of trusts in to full secret and half secret trusts. Bibliography Banister V Bannister. 1948, 2 All ER 122. Blackwell v. Blackwell. 1929, AC 318. Caunce v Caunce. 1969, 1 WLR 286. Gardner. 1987, Equity, estate contracts and the judicature acts: walsh v lonsdale revisited. Oxford J Legal Studies. 7: 60-103. Hodge, D. 1980, Secret trusts: The fraud theory revisited. Conv 341. Hodgeson v Marks. 1971, 2 All ER 684. Mathews, P. 1979, The true basis of the half secret trust. Conv 360. Penner, James. and Swadling, William.2007, Law of Trusts. University of London Press: 2007. Re Cook. 1965, Ch 902. Re Gardener. 1920, 2 Ch. 523. Re Young. 1951, 1 Ch 344. Westduetsche v Islington BC. 1996, 2 All ER 961. Read More