Half-Secret Trusts: Rules, Communication, and Key Differences
A half-secret trust is created where the will names a trustee but withholds the trust terms — communicated privately outside the will. Unlike a fully secret trust, communication must happen before or when the will is signed. If it fails, the property results back to the estate.
Fully Secret vs Half-Secret Trust at a Glance
| Feature | Fully secret trust | Half-secret trust |
|---|---|---|
| Face of will | Donee appears to take absolutely | Will discloses trustee role, not trust terms |
| Timing of communication | Before death (may be after will) | Must be before or at will execution |
| Authority | Ottaway v Norman [1972] | Blackwell v Blackwell [1929] (HL) |
| If trust fails | Trustee may take absolutely under will | Resulting trust for estate (trustee cannot take) |
| Writing required? | No (equity exempts from s53 LPA 1925) | No (same exemption applies) |
| Modern use | Rare — significant fraud risk | Very rare — risk of failure on communication timing |
Frequently Asked Questions
What is a half-secret trust?
A half-secret trust arises where the face of the will makes clear that the donee is to hold property as a trustee — for example, 'to X to hold on trust as I have communicated to him' — but the terms of the trust are not disclosed in the will itself. Those terms are communicated to the trustee separately, outside the will. The half-secret trust is distinguished from a fully secret trust, where the will gives property to the donee apparently absolutely (with no mention of any trust), but the testator secretly communicates trust obligations to the donee before death. In both types, equity recognises the trust outside the will to prevent the trustee unconscionably keeping the property for themselves. The law treating secret trusts as operating entirely dehors (outside) the will was confirmed in Blackwell v Blackwell [1929] AC 318 (HL).
When must the trust terms be communicated for a half-secret trust to be valid?
For a half-secret trust, communication of the trust terms to the trustee must occur before or at the time the will is executed. It cannot occur after the will is made. This is the key difference from a fully secret trust, where communication can occur after the will but must be before the testator's death. The reason for the stricter half-secret rule is logical: the will shows the trustee is taking as a trustee (not as a beneficial owner) — so a communication after the will that attempts to add new trust terms would be a testamentary disposition not complying with the Wills Act 1837. In Re Keen [1937] Ch 236, the Court of Appeal held that a communication made to a trustee before the will was executed but by a sealed letter to be opened after death was nevertheless valid — the communication was treated as having been made at the date of the letter, not at the date of opening. However, if the will referred to future communications as defining the trust terms, those later communications would fail.
What happens if a half-secret trust fails?
If a half-secret trust fails — because the trust terms were communicated after the will, or because the communication was inadequate, or because the trust purpose is otherwise invalid — the trustee does not take the property for themselves. Since the will shows the donee takes as trustee and not as a beneficial owner, there is no possible argument that they take absolutely. Instead, the trustee holds the property on a resulting trust for the deceased's residuary estate (or if the failed gift is the residue, for the estate on intestacy). This contrasts with a fully secret trust: if a fully secret trust fails, the apparent secret trustee has the possibility of taking absolutely under the will — though equity will prevent this if the failure was caused by them personally (Ottaway v Norman [1972]).
Do secret trusts have to comply with s53 LPA 1925 formalities for trusts of land?
No — secret and half-secret trusts of land are not required to be in writing under s53(1)(b) Law of Property Act 1925, which normally requires a trust of land to be evidenced in writing. Equity takes the view that secret trusts operate outside the will and outside statutory formalities — they arise to prevent fraud (Rochefoucauld v Boustead [1897]) and to give effect to the conscience obligation on the trustee. If writing were required, the trustee could simply deny the trust and keep the property. The same exemption applies to resulting and constructive trusts under s53(2) LPA 1925. However, the communication of the trust terms itself must be sufficiently certain: the subject matter, the trust purpose, and the beneficiaries must all be clearly identified.
Can a half-secret trust be used in modern will drafting?
Half-secret trusts remain legally valid in England and Wales but are rarely used in modern practice. They carry significant risk: if the communication is deficient, late, or destroyed, the trust fails and the property falls into the estate. The usual modern alternatives are: (1) discretionary trust in the will itself — will discloses the trust and trustee has a power of appointment, with a letter of wishes alongside; (2) an immediately settled trust under the will with fixed beneficiaries; (3) a life interest trust with remainder to named beneficiaries. The advantage of a secret trust — maintaining privacy about the beneficiaries — is largely unnecessary today. The risks (proof of communication, challenge by trustees, risk of failure) outweigh any benefit in most circumstances.
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