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    "Dear Roberta,

    This collection of historical books is quite valuable. It belonged to my brother, your late Uncle Fred. He stayed with me in his last years. His daughter, Jane, always wanted to have the collection and, in fact, Fred’s will did state that Jane was to have it, but Fred and Jane didn’t really get on towards the end of his life.

    One evening, just before he died, Fred handed to me one of the books and said, “These are yours – give them to someone who will really appreciate them.”

    So, now, I am giving them to you.

    Love as always,


    Advise Roberta if she can keep the books.

    At first glance I thought this was a straightforward secret trust question. But as the fact of the trust hasn’t been conveyed to the legatee, Jane, I don’t believe that Grandma can give the books to Roberta and the books should go to Jane as per the will. I think a secret trust can only arise if Jane was approached by Fred.

    Maybe if Grandma is an executor under the will it might be ok and be a secret trust.
    I am going round and round in circles with this one.
    Help please.

    Before you get to the trusts stuff, the preliminary question is whether this is a trust in the first place. It looks rather like a gift to me.

    Query whether Fred gifted the books to Grandma when he gave her a book and said "These are yours". If the gift succeeded then the books simply belong to Grandma, and so Fred's will is totally irrelevant - the books don't form part of Fred's estate, so Grandma can happily give the books to Roberta. The gift will only be effective if Grandma got legal title to the books. Usually, legal title to chattels passes with possession. Grandma can definitely gift the book that Fred handed to her to Roberta if she still has the book. She will only have legal title to the books if Fred handing Gradma one of the books was effective to give Grandma constructive possession over the whole collection, in the same way that if you hand someone the keys to a car they have constructive possession of the car. I'm unsure whether this would count as constructive possession, but I guess that it does.
    If Fred intended a gift, but never passed legal title to Grandma, then the books fall within Fred's estate and will go to Jane. Note that Equity won't perfect an imperfect gift per Milroy v Lord and Jones v Lock [ at the risk of over-complicating things, be aware of Choithram v Pagarani: an example of a court interpreting words which seemed to indicate a gift as a trust, the case looks rather like a court doing what Milroy v Lord said the courts shouldn't do - namely generously interpreting words in order to give effect to the settlor's wishes ].

    Only go onto the secret trusts stuff once you've considered whether its a gift or a trust. You seem to understand the secret trusts and seem to say that your problems are with fitting everything together on the facts, so I'll leave it there for now

    Remember to query certainty of subject matter (this is relevant to both the gift and the trust actually as you can't gift uncertain property for the same reasons as are behind your inability to create a trust over uncertain property, but easier to consider certainty of subject matter issues here I think).

    Its confusing, so don't be afraid to ask if I didn't explain it well >_>
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Updated: January 19, 2010

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