The fraud theory and the dehors the will theory are generally considered as the starting points for analysing secret trusts. However, both theories have been severely criticised. This article argues that the fraud theory is defensible from a jurisprudential perspective and should be preferred. Had a ‘principle-based’ approach been adopted in the analysis, secret trusts can indeed be justified on the basis of a legal principle – ‘the prevention of fraud’ – so that the dehors the will theory is unnecessary. The ‘principle-based’ approach should be distinguished from the ‘rule-based’ approach which is suitable for the analysis of statutes. The ‘principle-based’ approach can also reconcile fully-secret trusts and half-secret trusts.
Samuel Yee Ching Leung, Equity as a nest: the principle-based secret trusts, Trusts and Trustees, https://doi.org/10.1093/tandt/ttz079. Published: 26 August 2019.