Secret protection of dependants can be seen as a way of protecting sensitive

Information or secret documents in a trust agreement. In a trust agreement, the trustee is

given the soul responsibility of handling and managing assets and funds on behalf of
beneficiaries/defendants. Thus, trustees are therefore required by law to keep certain
information secret and confidential. Before proceeding further, it is worthwhile to note that
this, the right to secret protection of dependants falls under Trust fund.

What then is trust fund?

Foremost, setting up a trust fund is one of many options for transferring money,
property and other assets to family members or charitable cause. What then constitute a trust
fund?

Trust fund has been described as the relationship which comes up whenever a person called
the trustee compelled in equity and law to hold property received from the grantors legal or
equitable title which could be real estate or personal property for the benefit of some other
persons or for some authorized object called the beneficiaries/dependants.

In other words, It is an arrangement where a person gives another party the legal right to
manage his/her funds for the benefit of another person. It is set up in a way that the real
benefit of the property accrues not to the trustee but to the beneficiaries.

Furthermore, to have a holistic view of what trust entails, it is apposite to look at definition
given by different minds. Several authors have tried to give different definitions of what trust
is. According to Pettit’s definition, a trust is defined as:

“An equitable obligation binding a person (who is called a trustee) to deal with property,
over which he has control (which is called the trust property) whether for the benefit of
persons (who are called the beneficiary or cestui que trust) of whom he himself be one and
any of whom may enforce the obligation or for a charitable purpose which may be enforced
at the instance of Attorney-Gneral or for some other purpose permitted by law through
unenforceable .”

In a similar tone, Underhill is of the view that:

“a trust is an equitable obligation binding the person (who is called a trustee) to deal with
property over which he has control of trust property for the benefit of persons called
beneficiaries or cestui que trust of whom he may also be one, and anyone of whom may
enforce the obligation.”

These foregoing definitions are not encapsulating. However, the one was received
commendation was given by Keeton where he defined trust as:

“It trust is the relationship which arises where a person called the trustee is compelled in
equity to hold property whether real or personal and whether by legal or equitable title for
the benefit of some persons (of whom he may be one and who are termed cestui que trust) or
for some object permitted by law in such a way that the real benefit of the property accrues
not to the trustee but to the beneficiaries or other objects of the trust.”

Going from the definitions given, though varies but some things are common in terms of
general ideas which is: one person in whom the property is vested is compelled in equity to
hold the property for the benefit of another person or for some purposes other than his own.
The trustee is seen as the legal owner of the trust property while the beneficiaries are
regarded as the equitable owners.

However, trust has classification and under it we have Expressed Private Trust which is one
established when a clear intention to create a trust is proven. Under this category, the testator
lucidly or clearly states its terms and beneficiaries to the trustee. Furthermore, the terms of
the trust are outlined in a legal document such as a trust deed or written agreement between
the parties. Under this category lies secret trust. Without much ado, secret trust is one whose
existence is not made publicly, thus, giving the impression that the trust property is in fact a
natural gift to its recipient, the secret trustee. In other words, a secret trust is a trust in which
some or all of the terms of the trust are not apparent on the face of the will. As such, a testator
may wish to set up a trust on death without revealing its details in his/her will and thus can
use a secret trust to hide the identity of an ultimate beneficiary. A common example is where
someone might not want to disclose certain gifts given to extramarital partners or illegitimate
children. Alternatively, a secret trust can be used where a testator or has not made a final
decision as to the beneficiaries when the trust is created.

Essentially, there are two methods in which secret trust can be set up:

1. Fully secret trust

2. Half secret trust

FULLY SECRET TRUST

A fully secret trust arises where someone dies intestate or where there is no indication on the
facts of the deceased’s will that a trust exist yet the deceased intended the inheritor of their
property to hold it on trust for someone else. Under this, for there to be a valid fully secret
trust, the 3 major ingredients must exist vis: intention, communication and acceptance.

 Intention: Briefly, as the provision appears as a gift on the face of the will, if there is
no intention, the person to warm it appears to be a gift with the property absolutely.

 Communication: after there is intention and its definite, there must be

communication of the intention and it must take place at anytime before death, though
it does not matter whether it is before or after the signing of the Will as it was
established in the case of Wallgrave v Tebbs (1855) 2K & J313. Also, it has further
been affirmed in Re Boyes (1884) 2b Ch. D. 531 that The terms of the trust must also
be communicated inter vivos.

 Acceptance: Acceptance of trust is necessary in order to bind the secret trust. Failure
to do this will invariably render the secret trust void. Acceptance can be express or
inferred and silence maybe acquiescence. All these were however viewed in the case
of Ottoway v Norman

Half Secret Trust

Under this, Half Secret Trust arises where it is clear from the face of the will that the
property is left on trust but the will does not contract the terms of the trust. With half secret
trust, the requirements of the Will Act cannot be used as an instrument to defraud the
beneficiary as the half secret trusiee is a trustee on the face of the Will and cannot take
beneficially. In half secret trust, communication to the trustee and acceptance of truth must
take place before or at the time of the making of the Will and the Will makes it clear that
communication has already taken. Viscount Summer said in Blackwell v Blackwell

“a testator cannot reverse to himself a power of making future unwitnessed disposition by

merely naming a trustee and leaving the purposes of the trust to be supplied afterwards nor
can a legatee give testamentary validity to an executed codicil by accepting an indefinite
trust never communicated to him in the testator’s lifetime.

The rights of dependants, also known as beneficiaries, under a trust refer to the legal
entitlements that individuals who are named in a trust document have with regards to the
assets held in that trust. These rights may include the right to receive distributions of trust
assets, the right to information about the trust, the right to be treated fairly by the trustee, the
right to challenge a trustee's decisions, the right to sue for breach of trust, and the right to
legal representation in defense of their interests in the trust. These rights help to ensure that
beneficiaries are treated fairly, that trustees act in the best interests of the beneficiaries, and
that any breaches of trust are properly addressed. In a trust, a trustee holds legal ownership of
assets for the benefit of one or more beneficiaries. The trustee has a legal obligation to
manage the trust property in the best interests of the beneficiaries, who are considered the
equitable owners of the assets. One of the primary purposes of a trust is to provide for the
protection of dependants. This is typically achieved through the use of a discretionary trust,
which gives the trustee the power to determine how and when the trust property is distributed
to the beneficiaries.

Under the law of trusts, a trustee has a fiduciary duty to act in the best interests of the
beneficiaries, which includes taking into account their needs and circumstances. This duty is
particularly important in the context of a trust that is designed to provide for the support and
maintenance of dependants.

In some jurisdictions, such as the United Kingdom and Australia, there are specific laws that
provide additional protections for dependants of a trust. For example, in the UK, the Trusts of
Land and Appointment of Trustees Act 1996 sets out certain factors that a trustee must
consider when making decisions about the trust property, including the needs of any
dependants. In addition, in some cases, a dependant may have the right to apply to the court
to seek a variation of the trust if they believe that the trustee is not adequately providing for
their needs. However, this is generally only available in limited circumstances and is subject
to the discretion of the court.

Overall, the law of trusts provides a framework for the protection of dependants by imposing
a fiduciary duty on the trustee to act in their best interests. However, the extent of these
protections can vary depending on the specific laws and circumstances of each case.

In the light of this, the followings are rights of a dependant and ways to protect them:

1. Right to be treated fairly: Trustees have a fiduciary duty to act in the best interests
of the dependant and are required to treat all dependants fairly and impartially. In
other words, there is a relationship of Uberrima fidei between the dependant and
trustee that the latter should be straightforward with him in dealing the with the trust
property.

2. Cases of Minor Children: under this, When a trust is created for the benefit of minor
children, the trust may specify how the funds should be used for their care and
education. The trustee has a duty to ensure that the children's needs are met and that
the funds are used for their benefit. In some cases, the trustee may be required to
obtain court approval for certain expenditures. One of the extant Acts that protect this
is Child’s Right Act, 2003.

3. Appointment: The ability to appoint a guardian to care for minor dependants in the
event of the settlor's or trustee's death or incapacity.

4. Decision making: the requirement for trustees to make decisions that are in the long-
term best interests of the dependants. This is done with a view to protecting the
dependents’ rights. Given the age of the dependant (minor), he/she might not be able
to make some decisions and the trustee, who represents the dependants, should make
the decision that would reflect not the sentiment of the trustee bit what will promote
the excellence of the minor.

5. Right to confidentiality: Dependents have the right to expect that their personal and
private information will be kept confidential and not disclosed to unauthorized parties.
In other words, the confidence of the dependant is paramount and what the trustee
 should do to protect that would leave it in question should not be done. Failure to
comply might lead to the revocation of the trustee.

6. The ability to create trusts that are subject to ongoing oversight by the court or
another third party, which can help to ensure that dependants are adequately provided
for over the long term. Sometimes, the trustee is overwhelm with greed and may want
to take advantage of the situation, the role of oversight played by the court tends to
deter the fraudulent trustee, thereby protecting the

Overall, the law of trusts provides a range of protections for dependants, including various
mechanisms for ensuring that they are adequately provided for over the long term. These
protections can help to ensure that dependants are able to meet their financial and other
needs, even in the event of the settlor's or trustee's death or incapacity.

REFERENCES

1. Adewale T. & Akintola O.: introduction to Equity and trust in Nigeria

2. Oxford’s Advanced Learners Dictionary: 7th Edition
3. Wikipedia
4. Equity and Trusts in Nigeria: Second Edition by J. O. Fabunmi
5. Stimmel-law.com
6. Wills, Trusts and Estates (Emmanuel Laws Outlines) by Peter T. Wendel.