The one person for the benefit of another,

The
primary purpose of a will is to ‘distribute any property in the event of your
death’ as well as specify ‘other provisions’. It is a written legal document, which
witnesses the testator’s wishes concerning their property, on his/her death. According
to the Wills Act 1837 the requirements for a valid will, as followed by Lucy are:
it has to be written, signed by the testator, whilst in the presence of two
witnesses in this case Emmy Davis and Greg McKenna.

 

Within
her will, Lucy has created a number of testamentary trusts in relation to her property.
A trust is described as property being held by one person for the benefit of
another, the parties within the testamentary trust are: A testator, who has
absolute ownership of property until the trust is created, in this case Lucy.
The Trustee, who has the legal ownership of the property once the trust is
bound. Finally, the beneficiary, the equitable owner who enjoys the advantages
of the property, once a trust is bound.

 

To
begin with, in regards to the validity of Lucy’s first testamentary disposition
of the property with Astrid, there is a viable fully secret trust set in place hence Astrid would be legally entitled to give to
property she received as a gift, to Harry Prince.

 

A
fully secret trust is where a settlor leaves a legacy in his will on the secret
understanding that the legatee (a trusted person, in this case Astrid the
agent) will hold that property on trust for the beneficiary, Harry Prince. On
the face of the will the legatee is entitled to take the legacy absolutely,
whilst there is no indication of a trust or its terms in the will itself.

 

A
fully secret trust was created for one of the purposes of secrecy, in order to
keep the identity of the beneficiary undisclosed (e.g.
where the beneficiary is a mistress, an illegitimate child, or an organisation
to which the testator does not want to be associated with). Secrecy could be
viewed as necessary since once probate is granted, a will becomes a
public document which can be viewed by everyone, a secret trust allows an
element of privacy. It can also be created for those who are indecisive, it
caters flexibility and allows changes to be made without adhering the Wills Act
1873.

 

The
origin of the fully secret trust came from the case of Crook v. Brooking (1688) 2 Vern 50 whereas the leading case is Ottaway
v. Norman 1972 Ch 698. In this case the Testator left a bungalow to the housekeeper, she
was under a secret trust to
keep property and pass it on to testator’s son on her death, when she failed to
do so, her son brought action and the court held the son entitled to the bungalow
on the basis that obligation was accepted by her, this became a constructive
trust. The case of Re
Snowden 1979 2 All ER 172 is
also significant in demonstrating the usefulness of a burden of proof, which is
used fort he prevention of fraud from the trustee.

 

In order to create a fully secret trust, there are 4
main requirements to be fulfilled as set out by Brighten J in Ottoway
V Norman 1972, the first is
intention. In the case of kasperbauer v. griffith 2000 w.t.l.r. 333 the Court of Appeal demonstrated that a
secret trust requires a certainty of intention demonstrating it is a trust
which is to be created. It was held in this case that the testator had no intention on imposing a secret trust as the reference to
his wife ‘knowing what she had to do’ was too vague since it indicated no legal
enforceable duty but only a moral obligation. Here Lucy is clearly portraying
her intention through the form of a letter written months before with clear
guidelines of her wishes.

 

The
second requirement is communication. The case of Wallgrave v. Tebbs (1855) 2 K 313 clearly demonstrates
the importance of the communication from the testator to the trustee before
his/her death but, either before or
after the will is drafted (Moss v
Cooper), in order for a trust to be binding. In this case the
testator left a draft letter, after his death, specifying how the testator wanted the two trustee’s to hold the money.
It was held that since there was no communication, there was no binding trust,
hence both trustees could keep the money. Wood VC stated “Here there has
been no promise or undertaking on the part of the legatee. The latter knew
nothing of the testator’s intention until after his death. Upon the face of the
will, the parties take indisputably for their own benefit”. In the case of
Lucy, she was successfully able to communicate the trust to Astrid through the letter
she posted which stated the firm obligation, using no precatory words to ‘give
the property that I leave you as a gift in my will to the person whose details
are in the envelope in the safe in my Camden workshop’. Whilst she still included
the underlying rationale where the trustee is offered the opportunity to refuse
to act as the testator, this is evident in the letter beginning with ‘I
would like to ask a bug favour of you’ here the auxiliary ‘would’
giving Astrid a choice. Nevertheless,
the case Re Colin Cooper
1939 Ch 811 illustrates how the identity of all properties in the
secret trust must be communicated to the trustee. Lucy was successful in doing
this with section 3 of her will under ‘Personal Chatels’ stating Astrid
Lees would be in possession of ‘all my personal chattels as
defined by Administration of Estates Act 1925 s 55 except those which are the
subject of specific gifts in this Will or any codicil’. The method of valid communication can be oral or take the form or a letter,
fax, text, message, email or can occur via testator’s agent (Moss
v Cooper). In the case of Re
Keen 1937 Ch 236 it was a sealed envelope (similar to Lucy’s method) where the
judge stated “a ship which sails under sealed orders, is sailing under orders
though the exact terms are not ascertained by the captain till later” (Lord
Wright).

The third requirement is Acceptance; this can be made any time before
the testator’s death, as stated in the case of McCormick v. Grogan (1869) LR 4 HL 82 the acceptance can be
made ‘either expressly or by any mode of
action which the disponee knows must give to the testator the impression and
belief that he fully assents to the request’. Astrid’s text
message reply to Lucy’s request ‘Of course I will do whatever you have
requested’ would
comply perfectly with with the assent, as the modal auxiliary ‘will’ implies a strong confirmation.

 

The
last requirement is Reliance, where there has to be a reliance on the testator
to make the will and he/she must tell the trustee, whilst making sure the
trustee receives the property. In the case of Lucy, she is successful in
creating a will which reaches all requirements of the Wills Act 1837 whilst she
had supplied Astrid with ‘A copy
of the key to open the safe which is enclosed.’ within
the letter, this completing the transfer of the personal property, which represents
Astrid’s ownership of the property.

 

Moreover,
in relation to the validity
of Lucy’s first testamentary disposition of the property with Fahari, the half
secret trust fails and is replaced with a resulting trust. A half secret trust is one where the existence of the trust is not a
secret, as clearly mentioned in the will, nevertheless, the terms of the trust such
as, the identity of the beneficiaries will remain unrevealed.

 

Alongside
fully secret trusts, half secret trusts have the same requirements, except for
the timing element. This illustrates in order for the trust to be binding all
the content must be communicated to the testator before or at the same time as
the will is made and it must contain no reference to a future communication and
must not be inconsistent from the express wording of the will. In regards to
Lucy’s will, Fahari and Lucy already had their meeting prior to drafting the
will where ‘Lucy identified
two of her university friends, Kate Windsor and William Windsor, as the individuals
to receive the property in clause 2 of the will’. This is consistent with the wording
used to illustrate Lucy’s intention in the will ‘I give… for the persons
identified by me’, not revealing the beneficiary names indicating it is a half secret
trust. As stated in Re Keen 1937 Ch 236 “to be
held upon trust and to be disposed of by them among such person, persons or
charities as may be notified by me to them during my lifetime” 

 

The
will also has clear reference to the subject matter ‘the painting of the North
Norfolk coast’ which is stored in Lucy’s ‘Camden
workshop’.

 

Nevertheless,
it is the communication requirement which is an issue, since Fahari revoked her
acceptance after the drafting of the will she “recently wrote to Lucy to
explain…that she was no longer prepared to carry out Lucy’s wishes, and since ‘Lucy
received the letter but did not reply before her death’ according to Blackwell
v Blackwell 1929 AC 318 an automatic resulting trust would take
place, this type of trust is imposed by the law and returns beneficial
ownership of the property back to Lucy’s estates.