Analysis of equity and fraud Paper

All these measures have been introduced with the intention of preventing fraud and ensuring that there are no hidden transfers of equitable interests and that the contents of a deceased person’s will are clearly evidenced in writing. The purpose of the Wills Act of 1837 is, therefore, to encourage people to make out their last wishes formally, publicly and in writing to prevent any scope for misunderstanding.

However, the public nature of wills is often a significant drawback in some instances. A will is a public document and can be accessed by anyone and there are instances when a testator may wish to make provision for a mistress or an illegitimate child for example, which are not to be revealed in the public eye. In such instances, a testator may resort to secret trusts or half-secret trusts, whereby he formally and outwardly designates a legatee as the beneficiary of his estate, yet enters into a private arrangement with him for dispersal of the assets of his estate to other parties. The legatee thus accepts the gift after having provided an assurance to the testator for dispersal of the gift in accordance with the testator’s wishes. Hence this gives rise to the existence of a secret trust, however, if the beneficiaries cannot prove the existence of such a trust, the legatee may take the property free of the trust, which raises the issue of fraud.

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However, as established in the Snowden case, it is not for the legatee to prove that he is holding the property on trust, rather the beneficiaries of the trust must prove this, on the basis of the probabilities that exist.&nbsp.&nbsp.

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