University of Leicester
U594556.pdf (9.37 MB)
Download file

From law to faith : letting go of secret trusts

Download (9.37 MB)
posted on 2014-12-15, 10:45 authored by Stephen James Alan. Swann
This thesis re-examines the law of secret trusts and the doctrinal justification for enforcing a legatee's promise to a testator to apply his inheritance for the benefit of a third party nominated by the testator. It critically appraises, in terms of both case law and theory, the justifications presented by the fraud and dehors the will theories. Commencing with a review of the law on past and present testamentary formalities, it presents evidence that the modem dehors the will theory is a throwback to early misunderstanding about the relationship of informal testamentary trusts to wills. The testamentary nature of secret trusts is confirmed by an examination of probate case law defining a will and an analysis of the functions of the Wills Act formalities excludes the notion of an implied statutory exception for secret trusts. A review of precatory secret trust case law indicates how the law has developed based on a conventional assumption as to the nature of testators' secret instructions. The thesis also re-considers limits to the fraud-based constructive trust jurisdiction assumed to have endured the demise of the special probate courts. The thesis offers a new approach for English law based on accommodating the legatee's moral duty within a contingent restitutionary principle of personal fraud.


Date of award


Author affiliation


Awarding institution

University of Leicester

Qualification level

  • Doctoral

Qualification name

  • PhD



Usage metrics

    University of Leicester Theses