Abstract/Summary

It is regularly asserted that the modern explanation for the enforcement of secret trusts – both fully secret and semi-secret – is that they operate ‘dehors’ (outside) the will. The proposition is put forward in academic texts; and in practitioner works. (Although there is scepticism or rejection in other academic texts; and practitioner works.) The assertion is repeated even though the inadequacy of the ‘dehors the will’ approach has been well demonstrated. Since criticism of the approach has obviously so far not convinced, this article will briefly attempt to restate and clarify the critique. However, the main focus here will be different: to challenge the foundation of the dehors the will idea. It is usually attributed to the judgment of Viscount Sumner in the leading secret trusts case, Blackwell v Blackwell. The argument here is that his judgment has been misunderstood. It offers no real support for the dehors the will theory – and, equally, nor do later cases. He did not say, or imply, that secret trusts operate dehors the will. The novel contribution his judgment made was, instead, rather different: to suggest that secret trusts operate dehors the Wills Act; or, more precisely, dehors the formality rules in the Wills Act 1837. That is, Parliament’s intention was that the formality rules prescribed in the Wills Act should not apply to secret trusts: the trusts are an implied exception to those rules, when the Act is correctly interpreted. The implications of accepting this novel – and overlooked – explanation of secret trusts will be explored.