A testator leaves property in his will 'to Sam absolutely'. Before making the will, he told Sam he must hold the property for the testator's mistress, and Sam agreed. Sam later refuses to hand it over. What is the position?
Answer and explanation
Correct answer: B. A fully secret trust arises
- Step 1: A fully secret trust arises where the testator communicates the trust and the legatee accepts before death.
- Step 2: Equity prevents a legatee from using the will's formalities to commit fraud.
Answer
A fully secret trust arises.
Why not the others: The will's terms do not defeat the trust; the property does not go into residue; secret trusts are outside the will.
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