The principles of secret trust and fiduciary relationships in trust law are critically examined in this
research article. It examines the development of these principles over time, the conditions for
establishing a secret trust that is valid under the law, the kinds of assets that can be placed in a
secret trust, the legal obligations and responsibilities of trustees in fiduciary relationships, the
remedies available to beneficiaries in cases of breach of fiduciary duty, the differences between
secret and express trusts, the role of the courts in upholding these principles, and the effects of
technological advancements on secret trusts and fiduciaries.
In addition, the study analyses
significant case law and criticises the legal structure that governs these ideas. This research paper
provides a comprehensive understanding of the principles of secret trust and fiduciary relationships
in trust law, their advantages and disadvantages, and their significance in ensuring that trustees act
in the best interests of beneficiaries.
Modern legal systems are based on trusts, which are regularly used to hold assets and property for
the benefit of other people. Secret trusts and fiduciary relationships are two key concepts that have
arisen in trust law. Hidden trusts are legal arrangements that let a testator leave instructions for how
their property should be handled after death without having to make them public in their will.
Contrarily, fiduciary relationships are predicated on a trustee's legal obligation to behave in the
trust's beneficiaries' best interests. The management of property and assets held in trust must adhere
to both of these criteria to be ethical and in the best interests of the intended beneficiaries.
The history of secret trusts and fiduciary relationships in trust law is lengthy and complicated. The
concept of fideicommissum, an early form of a testamentary trust that permitted a testator to
transfer property to a trusted individual to hold for the benefit of another, can be linked to the
origins of hidden trusts. Similar ideas were developed in mediaeval England under the name used,
which permitted a landowner to give the legal title of the land to someone else while keeping
beneficial ownership for themselves.In reaction to shifting social and economic conditions, the 19th century saw the emergence of the
contemporary principles of hidden trusts and fiduciary relationships in trust law.
The demand for
adaptable and effective means of transferring property and managing assets grew as the economy
transitioned from one based on agriculture to one based on industry. Trust law became a specialist
area of legal practice as a result of this.
In the famous case of Blackwell v. Blackwell (1746), a testator who bequeathed his wealth to his
sister with an oral directive to hold it in trust for his illegitimate daughter received the first legal
recognition of secret trusts.
The court ruled that the oral instruction was enforceable as a secret
trust, even though it was not included in the will.
Contrarily, fiduciary relationships have their roots in equity law, which emerged in England
alongside the common law system. The case Keech v. Sandford
(1726) 1, which established the
rule that a trustee must operate in the beneficiary's best interests and not for their benefit, is
considered the first instance of the fiduciary relationship.
Since then, hidden trusts and fiduciary relationships have developed further in response to shifting
societal, legal, and financial circumstances. They are widely employed in estate planning, asset
protection, and business management today and are acknowledged as fundamental concepts of trust
The role of the courts in enforcing secret trusts and fiduciary relationships:
Courts have jurisdiction over the enforcement of hidden trusts and fiduciary
relationships, and they
are essential to ensuring that these rules be enforced fairly and uniformly.
Due to the element of secrecy they involve, which is vulnerable to misuse, courts have typically
been hesitant to enforce secret trusts. A court must be persuaded that the testator intended for the
trust to be created and that the trustee accepted the responsibility of holding the property on trust for
a hidden trust to be upheld. If there is no written record of the oral instruction, it may be difficult to
Secret trusts can be a valuable instrument for attaining the testator's purposes, thus in recent years,
the courts have taken a more lax approach to enforcing them. For instance, in Ottaway v. Norman
(1972) 2, the court upheld a secret trust even though the trustee was not informed of its provisions
until after the testator's passing.
Contrarily, fiduciary relationships are typically simpler to enforce because they are predicated on a
clear legal duty to behave in the best interests of another person. The court may step in to guarantee
that the beneficiary's interests are safeguarded in situations where a trustee or other fiduciary
violates their obligations.
In general, the courts' job in enforcing hidden trusts and fiduciary obligations is to strike a balance
between safeguarding the testator's intentions and prohibiting the exploitation of the system. The
courts can make sure that these principles are enforced fairly and consistently, and that the interests
of all parties are respected, by carefully examining the circumstances of each case.
The role of the Indian courts in enforcing secret trusts and fiduciary
Secret trusts and fiduciary relationships are strictly enforced in India by the courts. Indian trust law
recognises the notions of hidden trusts and fiduciary relationships, and the courts have created a
body of case law that describes the range and application of these principles.
In cases involving secret trusts, Indian courts typically demand strong proof that the testator
intended for a trust to be established and that the trustee voluntarily agreed to hold the property on
trust. The courts may also decline to execute a trust if it runs counter to public policy or the law.
The courts are generally wary about enforcing secret trusts that include fraud or illicit activity.
Indian courts have taken a broad view of the types of interactions that can give rise to a fiduciary
responsibility when it comes to fiduciary ties, including those between directors and shareholders,
doctors and patients, and lawyers and clients. To guarantee that the beneficiary's interests are
safeguarded in situations where a fiduciary breaches their obligation, the courts may impose
specific performance, injunctions, or penalties.
The case of Lallan Prasad v. Rahmat Ali
(1970) 3, in which the court sustained a secret trust even
though the details of the trust were not disclosed to the trustee until after the testator's passing, is
one of note involving the execution of a secret trust in India. The court held that the circumstances
of the case showed that the testator had intended for the trust to be created and that the trustee had
accepted the obligation to hold the property on trust.
Critique of the legal framework governing secret trusts and fiduciary
relationships in India:
Via a combination of case law and statutory regulations, India's legal system has developed to
handle secret trusts and fiduciary relationships. Although there have been attempts to codify trust
law in India, there isn't a complete statute that covers the concepts of secret trusts and fiduciary
relationships. For certain areas of trust law, this has resulted in a system of law that is a little
ambiguous and disjointed.
The legal structure has been criticised for making it challenging to prove the existence of a covert
trust or fiduciary relationship because the burden of proof rests with the claimant. In matters
involving secret trusts, the claimant is required to demonstrate that the testator meant to establish a
trust and that the trustee consented to it. This can be challenging to establish, particularly if there is
no written evidence of the trust.
Similarly to this, in cases involving fiduciary relationships, the claimant must demonstrate both the
existence of the fiduciary relationship and the breach of fiduciary duty. This can also be difficult
because fiduciary relationships can take many different forms and have unclear definitions.
Another criticism is that other areas of law, such as contract law and property law, are not
effectively incorporated into the legal framework for hidden trusts and fiduciary relationships.
may result in ambiguity and inconsistent application and enforcement of the law in these areas.
The appropriate remedies in circumstances involving hidden trusts and fiduciary ties are also not
entirely clear. Although the courts have the authority to impose injunctions, damages, or specific
performance orders, there is no established precedent for when each remedy is appropriate or how
damages should be computed.
However, even though India's legal system for hidden trusts and fiduciary relationships has
developed over time, there are still certain grey areas and inconsistencies that can make it
challenging for claimants to prove their rights and for the courts to consistently uphold the law.
How is fiduciary relation important in the formation of secret trust:
Fiduciary connections, which involve the relationship between the testator or settlor and the trustee
who holds the assets for the benefit of the intended beneficiary, are crucial to the creation of hidden
trusts. Trust, confidence, and reliance are characteristics of a fiduciary relationship. A fiduciary
must behave in the beneficiary's best interests and with loyalty and good faith. A hidden trust is one in which the trustee manages assets on behalf of the intended beneficiary but
does not make mention of the trust in the testator's will. So, the trustee must hold the assets in
confidence and carry out the testator's wishes without disclosing the existence of the trust.
The fiduciary relationship between the testator and the trustee ensures that the trustee will operate in
good faith and in line with the testator's instructions, which is crucial for the creation of the secret
trust. Fiduciary obligations impose obligations on the trustee to operate in the beneficiary's best
interests and to ensure confidentiality.
Because the trustee is responsible to the beneficiary for the appropriate administration of the trust,
the fiduciary relationship is also crucial in the enforcement of secret trusts. The beneficiary may
pursue remedies, including the removal of the trustee and the restitution of any diverted assets if the
trustee fails to carry out the testator's instructions or violates their fiduciary obligations.
In summary, the fiduciary relationship is crucial to the formation and enforcement of secret trusts. It
ensures that the trustee acts in the best interests of the beneficiary and upholds the confidentiality of
the trust. It also provides a mechanism for enforcing the terms of the trust and holding the trustee
accountable for any breaches of fiduciary duty.
If a fully secret trust fails for any reason, the trustee will take the gift for themselves. If a half-secret
trust fails, the trustee will not take the gift for themselves because it will be clear that this was not
the intention of the testator. Instead, they will hold the gift in trust for the residuary beneficiaries.
If the trustee of a fully secret trust dies in the lifetime of the testator, the trust will fail. However,
with a half-secret trust, equity will not allow a trust to fail for the lack of a trustee. In this case, the
personal representatives of the trustee will hold the property on the same terms as the deceased
the trustee or on such trusts as can be ascertained.
For a fully secret trust to be valid, therefore, it must be proved that there was the intention, that this
was communicated to the trustee, and that the trustee accepted his obligations. The intention is to one
of the three certainties and applies to fully secret trusts in the same way as it does to other express
The second requirement is that both the secret trust and its terms are communicated to the trustee.
This may be done after the writing of the will, as long as it is before death without it, the secret
trust is void. Exactly what must be communicated depends on the nature of the property and trust; if
there are multiple beneficiaries, for example, this will need to be communicated.
Case law analysis of notable cases involving secret trusts and fiduciary
Re Kayford (1975) 4 Facts of the case:
- The testator left a will which provided for his estate to be left to two
- However, he also gave oral instructions to his solicitor to hold the
estate on trust for a
- The testator did not include any provisions in his will for this trust
The court held that the instructions given by the testator to his solicitor created a valid secret trust,
despite there being no written provision in the will. The solicitor was therefore held to be a trustee
for the intended beneficiary.
The key principle established by this case is that secret trusts can be created even where there is no
written provision in the will. It is sufficient for the testator to give unequivocal instructions to the
The court noted that there are two types of secret trusts: fully secret trusts and half-secret trusts. In
fully secret trusts, there is no indication in the will that a trust exists at all. In half-secret trusts, the
will indicate that there is a trust but does not identify the beneficiary or the terms of the trust. The
court also stated that secret trusts must comply with the formalities required for the creation of an
express trust, such as the requirement for the certainty of intention, subject matter, and objects.
In this case, I believe the decision is reasonable and upholds the principle of giving effect to the
testator's intentions. The requirement for unambiguous instructions, on the other hand, may raise
concerns about the possibility of fraud or undue influence. The formalities required to establish a secret trust may also be viewed as overly restrictive, limiting the testator's ability to dispose of their
assets as they see fit. Overall, I believe the legal framework governing secret trusts strikes a good
the balance between ensuring the testator's intentions are respected and protecting the system from
Blackwell v. Blackwell (1929) 5 Facts of the case:
- In Blackwell v. Blackwell, a woman named Maud Blackwell made a will
leaving her entire estate
to her husband, Arthur Blackwell.
- However, she also made a statement to her solicitor indicating that she
wanted her husband to use
her estate to benefit her sister and brother-in-law after his death.
- The solicitor, believing that Maud was creating a secret trust, advised
Arthur of her wishes after
her death. Arthur refused to honour Maud's wishes, leading to a legal dispute.
The court held that Maud had indeed created a secret trust and that Arthur was obligated to carry out
her wishes. The court ordered Arthur to transfer a portion of the estate to the sister and brother-in
law as beneficiaries of the trust.
The ratio decidendi of the case is that a secret trust can be created when the testator communicates
their intention to create a trust to the trustee and the trustee accepts that intention.
The judge also made an obiter dictum that a secret trust is enforceable against the trustee's estate,
meaning that the obligation to carry out the trust survives the trustee's death.
Blackwell v. Blackwell established that a secret trust can be constituted through an inferred
communication of intention between the testator and trustee, making it a significant case in the
evolution of secret trusts. The case also serves as a reminder of how crucial it is to carry out a
testator's wishes while establishing trust, even if doing so involves defying the will's explicit
Moreover, the obiter dictum on the enforceability of hidden trusts against a trustee's assets has influenced the development of trust law in other decisions. Ultimately, the case highlights
the trustee's fiduciary responsibility to carry out the instructions of a testator in a secret trust.
Ram Coomar Coondoo v. Chunder Canto Mookerjee (1876) 6A landmark case in the history of Indian trust law established the concept of
secret trusts and
fiduciary relationships in India.
Facts of the case:
Judgment and ratio decidendi:
- The case involved the estate of one Sreemutty Koomarbasinee, who had executed
a will before
her death, bequeathing all her property to her nephew Ram Coomar Coondoo,
subject to a
condition that he would pay an annuity to her servant, Chunder Canto Mookerjee,
- However, after the death of Sreemutty Koomarbasinee, Ram Coomar Coondoo
refused to pay the
annuity to Chunder Canto Mookerjee, claiming that the condition was not binding
The case was initially decided by the High Court of Calcutta, which held that the condition imposed
by Sreemutty Koomarbasinee was a mere expression of her wish and not a binding trust. However,
on appeal to the Privy Council, the decision was reversed, and it was held that the condition
imposed by Sreemutty Koomarbasinee was a binding trust, which created a fiduciary relationship
between Ram Coomar Coondoo and Chunder Canto Mookerjee.
The Privy Council also made certain observations regarding the nature of secret trusts, stating that a
trust could be created even if the terms of the trust were not disclosed in the will itself, but were
communicated to the trustee separately and that the trustee would be under a fiduciary duty to carry
out the terms of the trust.
Analysis and opinion:
The decision in Ram Coomar Coondoo v. Chunder Canto Mookerjee established the principle that a
trust can be created by a testator's expression of wish, and the trustee is under a fiduciary duty
to carry out the terms of the trust. The case also laid down the foundation for the concept of secret trusts and fiduciary relationships in India. The Privy Council's observations regarding the nature of
secret trusts have been cited in several subsequent Indian cases, and have had a significant impact
on the development of Indian trust law.
Mahendra Nath Biswas v. Rani Sukriti Kumari (1955)Facts:
- In this case, a testator created a will in which he bequeathed certain
properties to his wife, but
directed her to hold them for the benefit of his mistress after his death. This
type of trust is known
as a secret trust.
- The wife died before the testator, and her son, the appellant, claimed
the properties under the will.
The respondent, who was the mistress, claimed the properties under the secret
The Supreme Court held that the testator had created a valid secret trust and that the respondent was
entitled to the properties. The court emphasized that when a trustee holds property under a secret
trust, he holds it as a fiduciary for the beneficiary of the trust. The trustee must act in the best
interests of the beneficiary and cannot use the property for his benefit.
The court in this case laid down the principle that the trustee in a secret trust holds the property as a
fiduciary for the intended beneficiary of the trust. This means that the trustee must act in the best
interests of the beneficiary and cannot use the property for his benefit. The court emphasized
that the relationship between the trustee and the beneficiary is one of trust and confidence and that
the trustee owes a duty to act with the utmost good faith and loyalty towards the beneficiary.
The ratio decidendi of this case is that a trustee who holds property under a secret trust holds it as a
fiduciary for the intended beneficiary of the trust. The trustee owes a duty to act in the best interests
of the beneficiary and cannot use the property for his benefit.
The court also observed that the testator had not made adequate provisions for his wife and children
and that this was a matter of concern. However, this was not the main issue in the case and the
observation was therefore obiter dicta.
The decision in Mahendra Nath Biswas v. Rani Sukriti Kumari is an important one because it
clarified the legal principles governing secret trusts in India. The court emphasized the importance
of the fiduciary relationship between the trustee and the beneficiary, and the duty of the trustee to
act in the best interests of the beneficiary. The decision also recognized the validity of secret trusts
in Indian law, provided that they are created in accordance with certain legal principles.
I believe that the decision in Mahendra Nath Biswas v. Rani Sukriti Kumari is a sound one. The
court's emphasis on the importance of the fiduciary relationship between the trustee and the
the beneficiary is in line with the principles of equity and good conscience. The decision also
recognizes the validity of secret trusts, which can be a useful tool in estate planning. However, it is
important that secret trusts are created by the legal principles laid down in this case,
to ensure that the interests of all parties are protected.
- Keech v. Sandford  EWHC Ch J76(1726) Eq Cas Abr 741
- Ottaway v. Norman (1972) Ch 698
- Lallan Prasad v. Rahmat Ali (1970) AIR 1322
- Re Kayford  1 WLR 279  1 All ER 604
- Blackwell v. Blackwell  UKHL 1,  AC 318
- Ram Coomar Coondoo v. Chunder Canto Mookerjee (1876) L.R. 4 I.A. 23