Blackwell v Blackwell [1929] AC 318

Key point

  • For half secret trusts to be valid, communication of the half secret trust must be made to the trustee before the will is executed

Facts

  • Testator (T) instructed his trustees in his will to use the income ‘for the purposes indicated by me to them’ and pay up to the capital ‘to such person or persons indicated by me’
  • T told the trustees orally before the execution of the will that the money should go to his mistress and his illegitimate son
  • T’s widow and legitimate son challenged the validity of the trust and claimed the money

Held (House of Lords)

  • The trust was valid and enforceable

Viscount Sumner

  • The necessary elements for a secret trust are intention, communication and acquiescence
  • Half secret trusts are enforceable if communicated to the trustee before the will is made
  • The testator cannot reserve to himself a power of making future unwitnessed dispositions by merely naming a trustee and leaving the purposes of the trust to be supplied afterwards
  • A legatee cannot give testamentary validity to an unexecuted codicil by accepting an indefinite trust, never communicated to him in the testator’s lifetime

Lord Buckmaster

  • The legatee (being the trustee) need not benefit by his own fraud for the writing requirement in s9 Wills Act to be overcome and oral evidence to be admissible

Commentary

  • Secret trusts only need to be communicated before the death of the testator
  • The distinction between secret and half-secret trusts in relation to the timing of communication is not principled