We are considering the implications of a legacy and letter of wishes, trying to decide whether it creates a secret trust or not.
There are many points to consider, but one question which comes to mind is, is it possible to create a secret trust where the Will appoints the partners in a firm of solicitors as executors and trustees? They are defined as “my Trustees”, and the legacy is given to “my Trustees”. There are many partners, and the identity of the partners has changed since the Will was made. Not all the partners will act as executors, and I wonder how there can be the required acceptance of the trust in these circumstances.
If it is what is the effect of the circumstances described?
If the estate/residue is given to the executors absolutely, then I believe this would imply the existence of a secret trust, especially where the executors are professional persons and not obvious candidates for the testator’s largess.
In the present case, it is likely that the testator communicated their intentions to the executors before the will was made, so that the named executors, as joint tenants, are all fixed with notice if one of the partners had notice of the trust.
I suspect that when the will was made, whoever took the instructions accepted them on the basis that the estate would be administered as requested. Arguably, therefore, the testator was induced to create the will in the form that they did which, to my mind, suggests that the current partners are bound to comply with the secret trust.
Had the named executor was, say, a trust corporation, then I believe there would be no doubt that it would be bound regardless of any change in personnel or directors.
I cannot see that there has been any judicial guidance on the circumstances identified in the post, so it may appropriate to consider obtaining an opinion from Chancery counsel in order to protect the firm.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals