Talk:Secret trusts in English law

Comments

Hey Ironholds - I wanted to say three things. Firstly, this is the best law page on wikipedia I have ever chanced upon. Great job.

Secondly, reading through the talk about the review, you mentioned two things that you lacked sources for - first, how often they're used in the real world; second, where the distinction arose from. I have come across sources on each: 1) use: See R Meager, 'Secret Trusts: Do they have a future?' (2003) 67 Conv. 203-14. This surveyed 100-odd solicitors about the use of secret and half-secret trusts, and found they are still extensively used. 2) origin of the distinction/why you would use one rather than the other: first, see the above article, which discusses this. Second, I recall reading somewhere that historically, STs developed first, before people chose to take advantage of the doctrine in a more reliable way through the HST - I think McFarlane, 'Structure of Property Law', around p560, may have been the source.

Finally, Gardner's 'Introduction to the Law of Trusts' 3rd edn. pp93-101 proposes a third explanation for secret trusts: a 'reliance' theory, based on his view of what a constructive trust is about. Might be interesting to add this to the 'Justification' section.

Thanks again for this article. NC — Preceding unsigned comment added by 86.135.172.241 (talk) 16:20, 29 May 2013 (UTC)

Curious

Curious indeed! Doesn't it result in double taxation to the ultimate beneficiary, double registration expense etc.? East of Borschov (talk) 22:43, 4 June 2010 (UTC)

Not really. There is tax on both transfers of property, certainly, but since the idea is that the property is passed the "real" beneficiary as soon as possible, most of the tax is going to be paid by them. Ironholds (talk) 23:11, 4 June 2010 (UTC)

Clarification of types of trusts

In its current form, the article's later discussion is hard for a lay person to follow, because there is no explanation of what a "constructive trust" is, or what an "express trust" is. Can someone expand this for the non-lawyers amongst us? hamiltonstone (talk) 01:12, 14 December 2010 (UTC)

I've linked some terms - it'll make more sense when my project is finished (the project being to get every element of English trusts law to GA - see User:Ironholds/ex for what English trusts law will look like when I'm done). Ironholds (talk) 13:59, 14 December 2010 (UTC)

The link is useful, but in terms of having the clarity needed for the article to stand alone as a GA, I think you need to add a phrase or two so the reader of this article will know what the debate is about (as a graduate lay reader, I genuinely don't understand what the article is saying, for example, about constructive / express trusts). Nice project and pretty technical, so good luck with it. hamiltonstone (talk) 23:04, 14 December 2010 (UTC)

GA Review

This review is transcluded from Talk:Secret trusts in English law/GA1. The edit link for this section can be used to add comments to the review.

Reviewer: Lord Roem (talk) 23:54, 30 December 2010 (UTC)

I will review this article. Cheers! Lord Roem (talk) 23:54, 30 December 2010 (UTC)

Initial Thoughts This article is very interesting and very well researched. I feel that this can be on its way to GA-status if some issues are worked out within the next week.

Lead

• The sentence that says that secret trusts 'should fall foul of...' seems to be editorialzing. If this is indeed a concern with secret trusts, this should be more explained in the rest of the article.
• The "definition" section clearly explains the invalidity element. Ironholds (talk) 21:03, 1 January 2011 (UTC)
• In the first paragraph, usage of 'will be given' sounds awkward. Maybe change to 'would be given' and so forth for that sentence.

  Fixed. Ironholds (talk) 21:03, 1 January 2011 (UTC)

• There is no need to shy away from in-line citations in the lead-in. It seems like you reference your information in the later content paragraphs, but it would probably be good to do it in the top section as well.

  See WP:LEADCITE; are there any clauses which particularly need citations due to their unlikely or challengeable nature? Ironholds (talk) 21:03, 1 January 2011 (UTC)

  On second look-through no. Good.

Definition

• Provide a cite for: "then expected to give something to the 'real' beneficiary".

  Done. Ironholds (talk) 21:03, 1 January 2011 (UTC)

• Fix a parenthesis issue at the end of the legal excerpt

  Where? Ironholds (talk) 21:03, 1 January 2011 (UTC)

  At the end of the Act's quotation, "...testator (but not necessarily in the presence of any other witnesses". There's no parenthesis there.

  Oh, headdesk; my bad. Thanks for finding it, it completely slipped by me. Ironholds (talk) 21:14, 1 January 2011 (UTC)

• You quickly move from the long excerpt about how they are not enforceable and very little here about why nevertheless they are allowed. I am typing this as I read through the article and so I see there is a 'Justification' section. Still, you need to transition here about how they are allowed especially if you are using this long textual explaination of how they are not.

  I've added a transition that leads in to the "justification" section.

• As I think about this, is there really a neeed to cite the act here, especially on definition? Maybe shorten it.
• Change "suggests" to "has suggested"

  Convention is to use the present tense. Ironholds (talk) 21:03, 1 January 2011 (UTC)

• The organization of this section needs to be reworked because you seem to go back and forth between the controversy of secret trusts' legality and the different types.

  Where? It goes legality, types, how they arose. Ironholds (talk) 21:03, 1 January 2011 (UTC)

Fully secret trusts

• Clarity is the big issue here - you repeat the word trust so many times it becomes difficult to follow. I understand what you're talking about as I am also a law-geek, but for the layman it would likely be tough to get through.

  Can you think of a valid alternative? Ironholds (talk) 21:03, 1 January 2011 (UTC)

Half-secret trusts

• This section is good. However, expand the discussion. Consider:
  • 1) Why would someone choose half-secret over secret
    • None of the sources cover that. Ironholds (talk) 21:03, 1 January 2011 (UTC)
      • So the sources discuss there being two different trusts but don't explain why the distinction exists? The reasons for it? If thats the case, then you've done the greatest extent possible. -- Lord Roem (talk) 21:17, 1 January 2011 (UTC)
        • Afraid not. My point (entirely OR) would be that like in many areas of law, the law arose to cover events already happening. Secret trusts did not start with the courts, people came up with them and the courts justified such trusts. As such, the answer is probably just that some people who used it in the early days made no mention whatsoever, and others made mention but left out the terms. Ironholds (talk) 21:22, 1 January 2011 (UTC)
          • I would ask that you try to find a cite for that so you more clearly mention that. I think that would better tell a reader why there are two types. That explaination makes sense, hopefully there's something to back it up :-) -- Lord Roem (talk) 21:25, 1 January 2011 (UTC)
            • Not that I can find, I'm afraid. Mind you, that doesn't mean it doesn't exist - I'm working from journal articles (which cover individual elements) and a pair of textbooks. There may be a third textbook somewhere which considers it. Ironholds (talk) 21:29, 1 January 2011 (UTC)
  • 2) The differences, if any, in the ability to enforce these
    • None of the sources cover that. Ironholds (talk) 21:03, 1 January 2011 (UTC)
  • 3) Maybe an example to help demonstrate. Maybe discuss the Blackwell case's facts?
    • Done. Ironholds (talk) 21:03, 1 January 2011 (UTC)
      • Great! It makes much better sense now. Lord Roem (talk) 21:17, 1 January 2011 (UTC)

Practice

• There seems a complete lack of discussion regarding how often it is used. This seems almost required as it a) demonstrates the importance of the subject and b) helps the reader better understand its usage. Was it widely used or not?
  • The present tense is best, given that it's still valid law, and the answer is "no idea". Textbooks and journal articles tend not to discuss the periodicy of such things. Ironholds (talk)

Justification

• The question I keep asking myself here is: "Why does it matter about this distinction between constructive or express trusts?"

  I've added a link. As far as I can see, the answer is "it doesn't, lawyers just like making academic hay of things". Ironholds (talk) 21:03, 1 January 2011 (UTC)

  :) Alright then.

• You seem to briefly mention the argument that secret trusts are valid because the Wills Act only applies to wills. This seems like an interesting argument that you should explore more.

  What more is there to say? Ironholds (talk) 21:03, 1 January 2011 (UTC)

  Are there any cases that give some basis in this theory? Lord Roem (talk) 21:17, 1 January 2011 (UTC)

  Not really, other than the brief quotation from Megarry VC, but Hudson goes on to say that Megarry VC was not "subscribing to so Luddite a view" as to validate that argument. Like English literature or any other highly academic area, professors don't need "facts" or "reality" to get in the way of their wonderful theory (now to be published in a highly expensive book!) :p. Ironholds (talk) 21:25, 1 January 2011 (UTC)

• Discuss here ^actual cases^ that established that secret trusts are valid. I read discussion of other cases in passing, but were there any explicit appellate or significant trial judgements which gave these agreements precedent in law?

  There are rarely cases which explicitly and directly say "this is a valid form of trust" or "this is a valid X". For example, it is considered unnecessary to cite the case which originally defined murder in murder indictments, even though, until last year, murder was a common law offence. If courts are accepting cases and giving judgments on how the courts will interpret secret trusts, I think it's fair to say they're valid. I doubt Superior Court judges accept cases that don't make a valid legal point simply due to sheer boredom. Ironholds (talk) 21:03, 1 January 2011 (UTC)

  Ok. I think that makes it only more interesting - this shady area of the law. Lord Roem (talk) 21:17, 1 January 2011 (UTC)

End thoughts on article content This article is very intersting and certainly piqued my interest in an area of law that I don't get that much involved in. However, it has taught me something and in a compelling way. For that reason, I will be placing this article on hold for improvements as this can certainly be improved to GA-status. Larger questions that need to be answered in the article, as you think about the changes I discuss above: - "Why would anyone have a secret trust?" - "When were they used?"

• Textbooks tend not to give a timeframe unless there is a firm point of origination. Given that equity evolved from the 12th century... Ironholds (talk) 21:03, 1 January 2011 (UTC)

-- "Are they still used today?" (as the article seems silent on the timeframe of these cases)

• They're still covered in textbooks and in the courts. I think we can say "yes". Ironholds (talk) 21:03, 1 January 2011 (UTC)

- "What implications did secret trusts have in the practical world?"

• They kept a lot of lawyers in cummerbunds. This is an area of trusts law covered exclusively by academics. They tend not to address the social and human impact of secret trusts. Ironholds (talk) 21:03, 1 January 2011 (UTC)
  • Because of that, any mention on how often these are used? Lord Roem (talk) 21:17, 1 January 2011 (UTC)
    • Not really. In reply to this and "why would anyone..." my old equity lecturer (possibly in jest) suggested it was historically used to provide for mistresses, bastard children and other dirty laundry they didn't want the family to find out about when the will was read. Citation Needed for that, though. Ironholds (talk) 21:21, 1 January 2011 (UTC)

Good luck on improvements and feel free to message me on any questions. Cheers, Lord Roem (talk) 06:08, 1 January 2011 (UTC)

Final Steps

• I think the article is ready for promotion as I feel confident now that it meets all applicable requirements. Please look for the other citations that may be out there to further improve the article. I will look through the article once more to see if there is any outstanding issues before I grant this a pass. Good work, especially considering the topic. -- Lord Roem (talk) 21:47, 1 January 2011 (UTC)

  Thank you kindly :). All the best, Ironholds (talk) 21:53, 1 January 2011 (UTC)

GA review (see here for criteria)

1. It is reasonably well written.

   a (prose): b (MoS for lead, layout, word choice, fiction, and lists):

2. It is factually accurate and verifiable.

   a (references): b (citations to reliable sources): c (OR):

3. It is broad in its coverage.

   a (major aspects): b (focused):

4. It follows the neutral point of view policy.

   Fair representation without bias:

5. It is stable.

   No edit wars, etc.:

6. It is illustrated by images, where possible and appropriate.

   a (images are tagged and non-free images have fair use rationales): b (appropriate use with suitable captions):

   The image appears to be fine notwithstanding the issue about its usage

7. Overall:

   Pass/Fail:

   Congrats - will now promote it. Thank you for quickly responding to my comments.

--Lord Roem (talk)