I've got an income support overpayment appeal and am arguing the existence of a secret trust. I have read somwhere that there is a Commissioner's decision on Secret Trusts - does anyone have a reference?

I assume the OP is to do with failure to disclose potential income from the trust fund. Was it secret because the client was unaware of its existence. If so the trustees could provide such evidence I presume. The client could not disclose a fact of which they were not aware.

Was this a case of a legacy to the client on the understanding (communicated before the death) that there was an obligation to pass it on to person not named in the will? This is what a secret trust is and the ruls are extremely complex and much beloved of law students (not).

The fact is that if there is a binding obligation to deal with the money in accordance with -pre-death instructions it is just like any other trust and the money does not belong to the secret trustee. The problem in secret trust cases is usually proof.

If you could give a bit more info I could probably tell you if the facts indicate a secret trust (or a half-secret trust, which are usually less problematic as they are mentioned obliquely in the will).

The case is CSB 989/1985, which seems to have actually involved a deliberate intestacy.

Before my client's father died he told her that he was leaving all his money (and a property) to her on the understanding that she give £1000 to each of her three children. She agreed to do this. This agreement did not feature in the will - there is a complicated family with lots of siblings and half siblings and this may be why the arrangement was not in the will.
Would be grateful for your views on whether you think this is a secret trust. As you say the problem with this is there is no proof but I was hoping to produce the decision I'd seen a reference to in another posting you made.

There are a couple of other other decisions involving Secret Trusts.

Looking on our Social Security Law CD-Rom, I found

CJSA 1395/2002

"23. At the oral hearing there was some discussion of the doctrine of secret trusts, under which a person who takes an absolute interest under a will or on intestacy can be found to hold the interest on trust to carry out purposes communicated by the deceased. This stemmed from the claimant's evidence at the hearing of a conversation with her grandmother about a week before she died in which her grandmother said words to the effect of "You will do the right thing with the house, won't you". It may be that the new appeal tribunal will have to consider the issue of secret trusts. However, after the further investigation which I said at the oral hearing that I would carry out, it seems to me that words like those quoted above would not define the trusts to be carried out with sufficient certainty to create any trust obligation and that one could not find the necessary implied agreement by the claimant to carry out defined trusts in reliance on which her grandmother failed to revoke her existing will and make a new one. I have therefore not sought any further submissions at this stage. I direct the new appeal tribunal that it need not consider the effect of the doctrine of trusts unless the claimant expressly relies on it or puts forward some further evidence which the new appeal tribunal considers makes this a live issue."

In the Court of Appeal, Wilkinson v. Chief Adjudication Officer, which came from R(IS) 1/01 (formerly CIS/256/1998), has a discussion on trusts referring, in passing, to Secret Trusts.

What you are describing is a 100% classic fully-secret trust. It requires the following elements:

- a gift by will (or on intestacy) to a person who will appear on the face of the will as an outright beneficiary;

- made on the communication to that beneficiary that he is to deal with the subject of the gift for the benefit of someone else (a secret beneficiary);

- the obligation is expressly accepted by the apparent beneficiary;

- both the communication of the purpose and the acceptance of the obligation are before the date of death of the testator; and

- in reliance on the promise the testator either creates the gift in the will or leaves the will unaltered.

The essentail is that the duty placed on the person who thereby becomes a secret trustee is in the nature of an obligation, not a polite request or a mere expression of wishes (I would have enjoyed "you will do the right thing about the house, won't you?" - straight out of a trusts exam!)
The testator needs to die in the belief the trust will be carried out for it to be binding on the secret trustee.
And the problem is evidence. In most of the case law the terms of the secret trust were either written down at some point, or there are several witnesses, not just the secret trustee.

thank you for your replies - as you say the problem is proof. Nothing written down and now only the secret trustee remains!