Secret Trusts Explained: Fully Secret vs Half-Secret Trusts

A secret trust is a trust that takes effect outside the formal will. A testator leaves property to someone in their will, but on a private understanding that the recipient will hold it for a beneficiary who is not named in the will itself. They exist because wills are public and rigid: the Wills Act 1837 requires strict formalities, so a testator who wants to benefit someone privately — historically, a secret partner or an illegitimate child — could not simply write it into the will. The secret trust lets equity give effect to their true intention. If you are preparing an Equity and Trusts assignment on this, My Perfect Writing’s law assignment help can show you how UK markers expect the doctrine to be argued.

This guide focuses only on secret trusts. For the wider module — the three certainties, express, resulting and constructive trusts — see our pillar guide to mastering Equity and Trusts.

Study note This is general educational information about UK law, not legal advice. Always verify the current law against primary sources and your own module materials.

In a fully secret trust, the will shows an apparently outright gift — "I leave £50,000 to my friend Anna" — with no hint that a trust exists at all. The trust is entirely off the face of the will. For it to be valid, three things must be present:

• Intention — the testator intended to create a trust, not to make a gift.
• Communication — the terms were communicated to the legatee (Anna) at any point during the testator’s lifetime, before or after the will is made.
• Acceptance — the legatee accepted the obligation, expressly or by silence.

The leading authority is Ottaway v Norman [1972], which sets out these requirements. The key feature to remember for exams is the timing: for a fully secret trust, communication can happen at any time before the testator’s death.

In a half-secret trust, the will shows that a trust exists but does not reveal its terms — "I leave £50,000 to Anna to hold on trust for purposes I have communicated to her." The reader knows Anna is a trustee; they just do not know for whom. The requirements are similar — intention, communication, acceptance — but with one crucial difference in the timing of communication.

For a half-secret trust, the terms must be communicated to the trustee before or at the time the will is made — communication afterwards is too late. This rule comes from Blackwell v Blackwell [1929]. The logic is that the will already commits the property to a trust, so the terms cannot be added later without effectively amending the will outside its formalities. This timing difference is the single most examined distinction between the two types.

Secret trusts sit awkwardly with the Wills Act, so examiners love asking why they are enforced at all. Two theories compete. The older fraud theory says equity intervenes to stop the legatee fraudulently keeping property they promised to hold for another — the idea in McCormick v Grogan that "equity will not allow a statute to be used as an instrument of fraud." The difficulty is that fraud theory struggles to explain half-secret trusts, where the trustee could never keep the property anyway.

The more modern "dehors the will" theory says the secret trust operates outside (dehors) the will altogether — it is an inter vivos trust that arises from the testator’s communication and the trustee’s acceptance, so the Wills Act formalities simply do not apply to it. A strong exam answer weighs both, rather than asserting one. For the broader marking lessons on arguing points like this, see our guide to the hardest courses in law school.

Secret trusts almost always come up as a problem question: a will with a suspicious gift, a conversation before or after the will, and a beneficiary who is not named. Your job is to spot which type of trust is in play, then apply the requirements — especially the communication timing — to the facts. Watch for the classic traps: communication to only one of several trustees, a change of terms after the will, or a gift that looks outright but was really on trust.

Before you dive in, make sure you have actually understood what the question is asking — problem questions often hide the real issue. For the general technique of structuring these answers, see our guide to Equity and Trusts and the common pitfalls in Equity and Trusts exam mistakes. You can read the leading authorities in full for free on BAILII.

The distinction that costs the most marks is the communication timing — and it is easy to muddle under exam pressure. Our Secret Trusts Revision Map lays fully secret and half-secret side by side: the requirements, the timing rule for each, the key authorities and what they decided, and a set of issue-spotting prompts for problem questions.

Grab the map Use the free resource card on this page to get the Secret Trusts Revision Map sent to you — keep it with your revision notes before the exam.