As the title indicates, secret trusts are trusts where a testamentary disposition is said to occur, but because of their secrecy, the judiciary treats them as exceptions to the Wills Act of 1837. Several S.53.1justifications have been put out by the judiciary as to why they exist. When it comes to secret trusts, a common question is whether they are express or constructive trusts and what implications either classification may have. The purpose of this essay is to look at the scope of secret trusts. S.9 of the Wills Act, which mandates that all such transfers be in writing, be witnessed, and be completed with signatures, deals with transfers of a testamentary nature. If we look at these prerequisites, it seems that secret trusts are in conflict with them, and fully secret trusts go even further against them than half-secret trusts because a full secret trust has no mention in the will and appears to be an outright gift, but the testator and trustee are the only ones who know the true nature of the transfer. Because the testator might very well utilise this statute to commit fraud, this is a matter for concern. Due to this, courts accept these trysts as an exception to S.9 and uphold them in spite of the obvious inconsistency. The fraud theory and the De Hors the will idea are the two arguments courts have made to support the creation of such trusts. The discussion in the current essay is considerably more naturally suited to the fraud theory. It is similar to the argument put forth in Rouchefould v. Boustead and R v. B, where the courts made it clear that they wouldn't permit the exploitation of a statute as a means of committing fraud. This approach was developed to stop legatees from engaging in deception to acquire unjust enrichment since they could readily use this act for such nefarious purposes. This demonstrates the significance of the idea and the necessity of taking it seriously. Lords Hailsham and Buckmaster emphasised how the prospect of fraud can destroy the purpose of the testator's intentions in Blackwell v. Blackwell, which presented a more detailed consideration of the fraud argument. However, there are problems with the craud idea. One major weakness is that it offers no explanation for why half-secret trusts exist; these trusts are those that are listed as "trusts" on the will document but are not, and the theory falls short of offering a compelling argument for their existence. However, it is cited as justification for the practise of maintaining full secret trusts. The S.53 (1)(b) LPA 1925 formality requirements, which stipulate that all express trusts must be written, are the fundamental driver behind the significance of the question of whether secret trusts are constructive or express. S.5(2), however, stipulates that resultant and constructive trusts are excluded from formality requirements, therefore if hidden trusts fall under this category, no such restrictions apply. Despite being an express trust in R v. B, it was recognised as an exemption to 53(1)(b) to avoid fraud. Contrast must be drawn between hidden trusts and other intervivos trusts that are formed for obvious beneficiaries. It can be argued that the Moss v. Cooper case established some prerequisites for determining whether a trust is valid, including the testator's clear intention and the secret trustee's accurate communication in accordance with the time constraints that must accompany the testator's acceptance of this duty of executing the trust. The fact that these particular requirements apply exclusively to secret trusts and not express trusts means that they are regarded as constructive trusts. Oakley continues the argument by stating that both the halfsecret trust and the complete secret trust should be seen as express trusts because the trstator had to intend for them to exist in the first place. Additionally, he claimed that the legislation creates a constructive trust when a trustee commits fraud by abusing S.9's provisions, citing the Bannister v. Bannister case law to support his claim. However, this reasoning raises the question of why other requirements are disregarded in favour of the purpose requirement. David Hodges asserts that secret trusts are actually express trusts due to the proper priority given to communication and acceptance between testator and legatee rather than because of the testator's intention. His line of reasoning is based on the fact that the trust arrangement is an express trust because the parties agree to it in writing. However, academics aim to disagree on this issue. For instance, Paul Mathews and Lionel Sheradon took a stand against both partially and completely secret trusts. They claim that only fully secret trusts are constructive trusts because they are not mentioned in the will document. As a result, they are only created to prevent fraud or the trustee from obtaining unjust enrichment. Conversely, because the trust is stated in the will form, half-secret trusts are express trusts. Given cases like Blackwell v. Blackwell, where nothing was fraudulently done but it was nonetheless done as per the court's order, it may be justified to treat half-secret trusts as express trusts; however, this justification does not seem strong enough to support the use of fully secret trusts as a means of preventing unjust enrichment. Each secret trust cannot be assumed to have the same justification. The idea that secret trusts are constructive trusts since they were created as a defence against unjust enrichment agrees with Hayton's. It can be argued that this is true for fully secret trusts, but it does not provide a convincing argument for why half secret trusts exist. Because these trusts are clearly stated in a will document, there are fewer opportunities for unjust enrichment on the part of the trustee than there are under a fully secret trust. The case law has made an effort to provide a compelling defence for the existence of hidden trusts. Half-secret trusts are express trusts, and the Re Baille decision demonstrates this by holding that it was unenforceable since it did not adhere to the S. 53(1)(b) requirements. Furthermore, it was established in Ottaway v. Norman that constructive trusts, which are free from such criteria under S.53(1)(b), include secret trusts. In the case, the trust was upheld despite not complying with the formalities set forth in the rule (2). In a different case's obiter, the court declared in Re Cleaver that a wholly secret trust was constructive because it wasn't mentioned in the will. As a result, the study shows that half-secret trusts are express trusts while fully secret trusts are most likely constructive trusts. Sen. Headley's example, however, illustrates a different scenario: if these trusts are treated as an exception to the S. 9 Wills Act, then requiring them to follow the formalities is illogical; if one legal requirement may be waived, why not the other? In conclusion, it is acceptable to say that half-secret trusts and fully-secret trusts differ from one another; one isn't included in the will, while the other is, according to academic research and the cases reviewed. Sen. Headly, however, paints a different image, rendering the entire discussion pointless. Why, he asks, should an evidentiary requirement be given much weight when there is a deviation from a significant legal requirement?
