Are secret trust express or constructive?

As their names suggest, fully secret and half-secret trusts are two different types of trusts that are
kept secret by the person making them. These provisions are left over from a time when people
thought it was wrong for a testator to have women and children with them, so they had to make
sure their dependents had what they needed in secret. But it is very hard to defend these clauses
based on the generally accepted rules of equity law.
In my answer to the question I am going to analyse the debate surrounding the nature of secret
trusts, especially whether they are constructive or express, even though the debate about their
overall validity is more well-known. I will also look at the law of secret trusts in detail, giving
close attention to its arguments, any possible objections, and any ways it can be broken down
into express or constructive trusts. It is important to understand how the secret trust works first.
The first step is to recognize that FSTs and HSTs could be legal and enforceable even if they
don't meet the criteria in Section 9 of the Wills Act of 1837 and other important acts like the
LPA. Equity developed the theory of secret trusts with the intention of stopping the beneficiary
from committing fraud against the trust and trying to keep the property that was left to the
beneficiary through this secret agreement for their own benefit. A Hidden or Secret Trust (HST)
is a type of trust that is mentioned in the will but the terms of the trust are not made public.
Fraudulent trust schemes (FSTs) usually happen when the trustee seems to accept an
unconditional gift according to the testator's will, but has made an unwritten deal with the
testator to keep the property as a trustee for someone else. It can be said that, unlike with an FST,
the trustee of a HST cannot refuse the trust and cannot illegally take possession of the property
given that the person is clearly acting as a trustee on behalf of another person and that fairness
forbids them from taking ownership of the property for their own benefit. Now that we know
what the ideology is about, we need to know why it is true. One theory for being exempt from
requirements is that secret trusts can be enforced by the court of equity in favor of a secret
beneficiary, since equity doesn't allow a law to be used for fraud. This is thought to be the first
and most accepted theory. This means that the beneficiary can't argue that there wasn't a right
way to do things and keep the trust funds for themselves. The failure of the fraud theory to
explain both FSTs and HSTs led to the development of ideas that try to change the way we think
about fraud. Lords Buckmaster and Hailsham said that either the testator or the beneficiaries
could be a victim of fraud. Viscount Sumner and Lord Warrington came up with the "dehors will
theory" in the case of Blackwell vs Blackwell. This theory tries to get secret trusts out of the
Wills Act by saying that they are just regular trusts made while the person is still alive. In the
case of Young, it was decided that a person who witnessed a will could also be a beneficiary of a
secret trust.
In Re Gardner, the interest of a beneficiary in a secret trust went to the testator's estate even
though the beneficiary had died before the testator. These cases show how trusts can be used in
ways that go beyond what the Wills Act allows. If the trust had been run according to the Wills
Act, beneficiaries who die before the testators would not have been able to keep their share of the
trust, and witnesses to the will would not have been able to get a gift.
After talking about the three main defenses now I will talk about the debate between express and
constructive trusts. There are two different points of view that don't agree. Both the fraud theory
and the dehors theory say that proof of a declaration of trust can be accepted even if it is not in a
way that the law allows. So, the only way to express secret trusts is through logical thinking.
Some people think that STs keep going because it would be illegal for the unnamed trustee to
break their promise to keep the property in trust. Let's look at each of these in turn. People say
that secret trusts should be called constructive trusts because they are put on the person who
receives a bequest when that person knows in good conscience that they have to hold that
property in trust for someone else. The secret trust does not meet the requirements for
testamentary trusts, as was already stated, and it may not meet the requirements in Milroy vs
Lord. So, it can't be thought of as a normal express trust. So, the secret trust could be thought of
as a separate type of trust or as a type of constructive trust. Some sources say that a HST on land
cannot be put into effect without written proof. Martin says that one way to solve the problem
would be to say that secret trusts are constructive trusts and, as such, are free from the rules of
s53(1)(b) because of s53(2). He says that HSTs are explicit because they are named in the will,
while FSTs are implied because they are not mentioned. But he also says that FSTs can be seen
as both express and constructive because they were put in place before the de hors the will
theory.
From a different point of view, the classification of secret trusts may depend on how Section 9 of
the Wills Act is interpreted as either a procedural or a substantive requirement. If the first choice
is made, it should be seen as helpful. If the second choice is made, it should be made clear. It's
important to think about what this difference means. For example, it might be possible to change
who owns a piece of land. The court follows both s. 53 (1) (b) of the LPA and the rules of the
Wills Act when it upholds a claim to a ST of land. Oakley has said that s53 (2) wouldn't have
applied to secret trusts if they were constructive. A trust that is kept secret is not an express trust
because it is set up using the rules from Blackwell vs Blackwell and Ottaway vs Norman instead
of the formalities that are needed for express trusts. The fully secret trust is probably one of the
implicit trusts listed in section 53(2) of the Law of Property Act of 1925. It looks like the trust in
question may have been set up as a constructive trust to keep the property's formal owner from
doing anything wrong. In reality, when courts set up covert trusts, they make the person who
received a ffi gift the manager because it wouldn't be fair for them to have a full stake in the
assets. Equity's attitude in this case is mostly based on the fact that the unnamed guardian knows
that her job was to hold the property in trust for someone else, not to take ownership of it.
Still, it seems that HSTs are not satisfied by the idea of a constructive trust in cases where the
trustee has little chance to be dishonest and the trust matches the testator's clear wishes, unless
we choose to accept the expanded fraud theory. Even though FSTs were used, the main goal was
to keep the settlor's wishes in mind. Would this be a good example of an express trust? Let's look
at the other side of the argument.
In both the FST and HST cases, it makes sense that an express trust is taken into account because
the testator wants to make a link between the trustee and the beneficiary. This point of view is
strengthened if trusts work without fraud and outside of the will. Oakley said that all STs and
express trusts have to follow s 53(1)(b). Ballie says that HSTs are express trusts because they
need to be put down. Martin had a similar point of view in the past. Perrins says it's wrong to
think about whether FST is constructive or expressive. The theory of STs is more concerned with
how proof of a trust is accepted than with what kind of trust it is. An express trust is usually part
of a Family Settlement Trust (FST). Even if they don't use those exact words, the testator says
that the legatee will act as a guardian. The trust that was stated outside of the will could have
been made explicit by the testator or the legatee, or it could have been constructive depending on
the circumstances.
A contract between a testator and a beneficiary can form an express trust, even if the trust was
originally meant to be constructive and set up outside of the will. By saying the will's name out
loud, the trust is made clear that it is an express trust. If the rules are clear, why should the court
allow someone to break them? (S 53) The question of whether or not secret trusts are express or
constructive is still being discussed. When trust duties are taken into account, it would be wrong
and unethical for a trustee to end trust rights unless the testator has made it clear how to do so.
In conclusion, the question of whether or not secret trusts are express or constructive is still open
for discussion and it would be unethical and unconscionable for a trustee to revoke the trust's
rights in any form other than the one in which the testator has secretly communicated it to the
trustee. I have tried to address both sides of this argument. However, I believe that secret trusts
are constructive.