Re Gardner (No 2) [1923] 2 Ch 230

• According to W’s will, property was to be left to H for life and, upon his death, to be held on secret trust for 5 beneficiaries.

• One beneficiary (B) died before the wife.

• His estate claimed the share held on trust for him and the court awarded it, finding a secret trust whose effect pre-dated the testator’s death!

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Martin criticises this decision: A gift by will normally lapses if the donee predeceases the testator, and the estate of the donee can only claim if the donee acquired some interest in the property before he died.

No such interest could exist in this case; the theory which suggests that a secret trust can be treated as a lifetime declaration of trust does not suggest that any interest is obtained by any beneficiary prior to the constitution of the trust by the vesting of the legal estate in the trustee.

Gardner criticises this, saying that a mere agreement to create a trust cannot impose obligations before the trust is fully constituted i.e. by the transfer of property to the trustee / legatee by the will. Therefore it must be wrong to say that obligations to B began before the trust was constituted. 

Critchley also says this was wrongly decided, since a beneficiary cannot take an interest in a trust before is constituted.