Equity & Trusts - Secret Trusts!! Watch

Hanziebabe
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Im really stuck on this area of law! Any advice would be great!

If the testator wants to appoint someone as a trustee to hold property for a beneficiary but the 'secret' trustee stays silent and neither accepts or rejects to become a trustee and the testator dies before he has a chance to decide...will there still be a valid secret trust as he stayed silent?

I know its a bit confusing but couldnt word it any other way! Any help would be great! In final year and the stress is on!
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cliffg
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(Original post by Hanziebabe)
Im really stuck on this area of law! Any advice would be great!

If the testator wants to appoint someone as a trustee to hold property for a beneficiary but the 'secret' trustee stays silent and neither accepts or rejects to become a trustee and the testator dies before he has a chance to decide...will there still be a valid secret trust as he stayed silent?

I know its a bit confusing but couldnt word it any other way! Any help would be great! In final year and the stress is on!
The case you need to look at is Moss v Cooper [1861] 1 J&H 352 at para 366:

" ....It is necessary to prove knowledge on the part of the legatee of the intended trust, and acquiescence, either by words of consent or by silence, when the intention is communicated to them."

So it appears that in the absence of an active rejection, silence will suffice as acceptance. If answering a question on this, however, I'd look closely at the facts given. How was the intention communicated to the secret trustee - was it face to face or, for example, by letter ? (Compare McCormick v Grogan) Did the secret trustee have an opportunity to reject? What was the time scale between communication and the death of the testator? Was there time to reject? Such facts might provide areas of debate in an answer.

Caveat - it's a couple of years since I studied trusts so check that this is still good law.
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Hanziebabe
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Thank you!

Yeah its part of an essay question:

The day after he signed his Will, George telephoned his best friend Lewis to say that he had left a sum of money to him in his Will. However, he told Lewis that the money was not for him, but instead that Lewis should give the money to George’s illegitimate daughter, Nancy Butler. George gave Lewis Nancy’s contact details and asked him not to mention this to his other two children, Ben and Isla, as they had no idea that they had a half-sister. Lewis was not comfortable with this arrangement. He told George that he would have a think about it and let him know whether he would be happy to be part of this arrangement. Unfortunately, George has now passed away. Lewis never got back to George about whether he was prepared to be part of the arrangement referred to above.

As you can see it does not state the time scale between communication and the death of the testator! I think I will go with the silence is acceptance
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cliffg
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(Original post by Hanziebabe)
Thank you!

Yeah its part of an essay question:

The day after he signed his Will, George telephoned his best friend Lewis to say that he had left a sum of money to him in his Will. However, he told Lewis that the money was not for him, but instead that Lewis should give the money to George’s illegitimate daughter, Nancy Butler. George gave Lewis Nancy’s contact details and asked him not to mention this to his other two children, Ben and Isla, as they had no idea that they had a half-sister. Lewis was not comfortable with this arrangement. He told George that he would have a think about it and let him know whether he would be happy to be part of this arrangement. Unfortunately, George has now passed away. Lewis never got back to George about whether he was prepared to be part of the arrangement referred to above.

As you can see it does not state the time scale between communication and the death of the testator! I think I will go with the silence is acceptance
Be careful - remember that we're talking about "acquiescence, either by words of consent or by silence.." You have neither here. The words are not ones of consent, nor is Lewis silent. In fact it is clearly arguable that he did not acquiesce to this arrangement - he asked for time to think about about it. I would search for some academic comment on how far the notion of acquiescence can be stretched.
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