A key point is that an express testamentary trust arises without the need for the trustee named in the will to know of the trust let alone to agree to act as trustee, whereas a secret trust can only arise if the trustee has agreed with the testator to act as trustee. It is their reneging on this agreement after the testator’s death that is fraudulent or unconscionable conduct justifying compelling them to give effect to the agreement through the imposition of a constructive trust. There is support for this in judge and counsel ignoring the LPA, s 53(1)(b) in Ottaway v Norman (above) and in Kasperbauer v Griffith [2000] WTLR 333, where the Court of Appeal took the view (agreeing with Nourse J in Re Cleaver [1981] 1 WLR 931 at 947 that a constructive trust would be imposed to [...]. However, as no trust was found in that case, this is only obiter dicta.
Answer
compel a secret trustee to hold trust property as had been agreed with the testator
Tags
#equity #law #secret-trust
Question
A key point is that an express testamentary trust arises without the need for the trustee named in the will to know of the trust let alone to agree to act as trustee, whereas a secret trust can only arise if the trustee has agreed with the testator to act as trustee. It is their reneging on this agreement after the testator’s death that is fraudulent or unconscionable conduct justifying compelling them to give effect to the agreement through the imposition of a constructive trust. There is support for this in judge and counsel ignoring the LPA, s 53(1)(b) in Ottaway v Norman (above) and in Kasperbauer v Griffith [2000] WTLR 333, where the Court of Appeal took the view (agreeing with Nourse J in Re Cleaver [1981] 1 WLR 931 at 947 that a constructive trust would be imposed to [...]. However, as no trust was found in that case, this is only obiter dicta.
Answer
?
Tags
#equity #law #secret-trust
Question
A key point is that an express testamentary trust arises without the need for the trustee named in the will to know of the trust let alone to agree to act as trustee, whereas a secret trust can only arise if the trustee has agreed with the testator to act as trustee. It is their reneging on this agreement after the testator’s death that is fraudulent or unconscionable conduct justifying compelling them to give effect to the agreement through the imposition of a constructive trust. There is support for this in judge and counsel ignoring the LPA, s 53(1)(b) in Ottaway v Norman (above) and in Kasperbauer v Griffith [2000] WTLR 333, where the Court of Appeal took the view (agreeing with Nourse J in Re Cleaver [1981] 1 WLR 931 at 947 that a constructive trust would be imposed to [...]. However, as no trust was found in that case, this is only obiter dicta.
Answer
compel a secret trustee to hold trust property as had been agreed with the testator
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Open it the LPA, s 53(1)(b) in Ottaway v Norman (above) and in Kasperbauer v Griffith [2000] WTLR 333, where the Court of Appeal took the view (agreeing with Nourse J in Re Cleaver [1981] 1 WLR 931 at 947 that a constructive trust would be imposed to <span>compel a secret trustee to hold trust property as had been agreed with the testator. However, as no trust was found in that case, this is only obiter dicta.<span><body><html>
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