Half secret trust?

A client wishes to leave her estate to her executors and let them distribute as “they know what she wants”. The client has discussed the matter with the executors and her children. She advises me that they are all happy with this arrangement and the client is unwilling to give me any further details on what the arrangements are for distribution of her estate. I suspect nothing is in writing to the executors. Having never come across a situation like this before I wonder if anyone has any advice on drafting such a Will which I suspect will be quite brief. The client has no capacity issues and I took the instructions in her presence only, during a home visit. I did advise her that it was not usual and that perhaps she wanted to reconsider and but she is adamant she wants it done this way. It seems similar to a half secret trust situation but would the absence of written instructions invalidate the Will?

sharon edelstyn
Phoenix Legal Group

For a half-secret trust to be valid, the terms of the trust must be communicated to the trustees (in this case the executors named in the will) no later than when the will is executed. If communicated afterwards, the trust is unenforceable and, in the absence of any alternative disposition of the estate set out in the will, the laws of intestacy will apply.

Whilst there is no requirement for the terms of the trust to be communicated in writing, the absence of an appropriate document could make the administration of the estate somewhat complicated if the executors are challenged to prove the terms of the trust by anyone who feels they have not received their “dues” from the estate.

Once the will is executed, the testatrix cannot change the terms of the trust.

I wonder if the client might be persuaded to give her estate to the executors on a discretionary trust, with power for the executors to add beneficiaries, so as also to cater for any changes in her wishes that might arise. Any letter of wishes she signs when the will is made can be regularly reviewed, and updated as necessary.

Paul Saunders