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The Blackwell v .Blackwell Case Essay

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Updated: Sep 17th, 2022


In almost every country, several law proposals emerge daily and crucial arguments and controversies accompany their implementation. Currently, researchers have noticed that debates against laws are increasingly becoming the uptake of public contentions leading to substantial amendments, which are fundamental to nations. Nonetheless, it is always a contemporary issue in law and policymaking to ensure that all laws and policies governing nations, states, or even the entire globe are human friendly and that each citizen feels content with its statements. In most cases, pitfalls within laws and policies lead to either misjudgments or even unintended law-breaking due to a lack of clarity in the laws. Of late, the world has witnessed augmented efforts by law and policymakers in sensitizing and educating civilians on the components of laws through public campaigns. This study seeks to explore issues surrounding the case “Blackwell v Blackwell [1929] AC 318” and its relevance.

Overview of Blackwell v Blackwell

A case study of Blackwell v Blackwell [1929] AC 318 entirely concerns the principles of secret trusts between individuals, which later led to endless controversies. Blackwell v Blackwell [1929] AC 318 case resulted from informal agreements that occurred between friends on financial issues that brought about controversial arguments of the nature of the trusts. The case of Blackwell v Blackwell involves individuals subject to financial agreements without proper legal procedures.1 Primarily, this case was about the enforcement of a half-secret trust involving the appellant, (the widow and son of J D Blackwell), who brought a battle against legal representatives of the testator or rather settlor. The testator in this case included W E Blackwell and B S Blackwell, who executed a will. It also involved five trustees of a secret trust and beneficiaries of the secret trust involving a sixteen-year-old son and his mother. This aspect later raised an issue on the validity of the “will”, which consequently forced the judicial authority to preside over half-secret trusts.

The case of Blackwell and Blackwell [1929] AC 318 describes how the testator accomplished an agreement that bestowed a sum of twelve thousand pounds in the lead of trust or rather will to about five of his friends to use it in their own investments after which they would communicate.2 Under the will provided by the testator, one condition involved in the trust stated that these friends would manage the income and interest rising from the sum of money, with powers at any given moment to give a capital of eight thousand pounds to the chosen person or persons by a testator as part of the residuary estate. The person or persons in the Will were his wife, with whom they had a sixteen-year-old son outside wedlock, as beneficiaries. The five friends knew of the testator’s relationship with the woman, whom she financially aided for two years before execution of the trust. The appellants argued that the trust was against acts governing wills.

The controversy in this case rose over the will when the trustees became unfaithful and decided to withhold the money. Before this occurrence, one of the testator’s friends decided to act as his solicitor and agreed to sign a memorandum on the terms abiding the trust that contained the names of the illegitimate son and the woman. When the trust failed to work due to maliciousness of the trustees, who decided to hold the money, a dispute erupted after the widow and the son of the testator claimed that the trustees refused to produce the £12,000 claiming it as part of the residue.3 The appellants in this context argued that this merely being parole evidence, which involves verbal agreements, could not have served to verify the secret trust agreement, which was against the Wills Act 1837. The case happened when enforceability of secret trusts was emerging thus leading to the development of half-secret trusts, and thus its enforcement.

Before Blackwell v Blackwell (Fully secret trust)

As stated before, the case of Blackwell and Blackwell [1929] AC 318 resulted in several changes in issues pertaining to secret trust agreements within the English law. A secret trust refers to an informal or unofficial agreement that exists between two or more individuals when they engage in property-lending or giving deals. Initially, fully secret trusts were most dominant and renowned in English law before the Blackwell and Blackwell [1929] AC 318 case. The advent of the case of Blackwell and Blackwell completely changed issues pertaining to secret trusts. The issues that surrounded the execution of the secret trusts, which later became a codicil, changed the norms in the secret trust to split into two, viz. fully secret trust and the half-secret trust. A codicil may simply refer to a legal document that changes the specifications of previous will or testaments. During this case, the characters breached etiquette used in making fully secret trust, thus leading to half-secret trust.

Policies and values governing fully secret trust

The policies and values underlying fully secret trust, which dominated before the case of Blackwell and Blackwell [1929] AC 318, initiated the beginning of half-secret trust. Before commencement, “a secret trust arises where a person gives property to another, communicating to that person an intention that the property be dealt with in a specific way upon the happening of an event, and the one accepts the obligation.”4 A fully secret trust arises in the situation where a testator gives property to a person apparently beneficially, thus giving certain conditions through complete communication on certain trusts. Several policies govern the fully secret trust, which are essential before putting up an agreement. As portrayed in the case of Re Snowden [1979] Ch 5285, one the most fundamental conditions of the fully secret trust is the communication protocol, in which a testator and trustee have to agree. Ideally, communication in the case of fully secret trust must always occur before the death of the testator.

Any documents found after the death of a testator can barely communicate a secret trust. This aspect specifically discourages the occurrence of fraud in which forgery of important documents may happen from malicious deals. Failure of proper communication also bars anyone from testifying on the secret trust, since even the secret trustees will not manage to decide whether to accept or reject the secret trust.6 Apart from communication evidence that reveals that the testator and the trustees communicated before or during time the making of the will, acceptance is normally incomplete and it undergoes other conditions, just as in Re Snowden [1979] Ch 5287. Within this context, there are three legally accepted certainties tests including “certainty of intention, certainty of subject matter, and certainty of objects”.8 However, certainty of intention is paramount to the fully secret trust whereby a court has to verify the intention of the testator to create a trust before considering the trust.

Deficiencies in fully secret trust

The Blackwell and Blackwell was perfect evidence that revealed that there were deficiencies in the fully secret trust that resulted in such an event. Normally, the rationale behind the full secret trust results from circumstances where a client wishes to keep secrets over the ultimate beneficiary. However, “a trust of this nature, not reduced in writing to constitute a Will, brings with it many difficulties”.9 Due to this element, the possibilities of the named trustee to infringe an agreement intentionally and keep the trust property for him or herself are considerably high. The principles of the fully secret trust that existed during this moment actually had no evidence that all partners involved in the trust must sign or agree to use a legal documented writing, as concluded in Keen, Re, Evershed v Griffiths case [1937] Ch 23610. The pitfalls existing in the parol evidence rule in the fully secret trust allowed trustees to use it for fraud, which seemed to prove legally.

Significance of this case

The case of Blackwell and Blackwell [1929] AC 318 seems to be a very significant one towards the amendment of the secret trust, which existed earlier in the English law. The happenings of this case compelled law and policy makers to engage in serious debates over the controversial agreements that surrounded the Blackwell and Blackwell [1929] AC 318 case.11 Sources reveal that during this crucial moment the judicial department in the UK intervened to provide authority for half-secret trusts. Blackwell and Blackwell [1929] AC 318 probably marked the end to some evidence that existed in the fully secret trust including the parol evidence that was a common practice by fraudsters in the name of trustees to frustrate beneficiaries of a will. Actually, it became clear to the authorities that the enforcement of the fully secret trusts was not enough to prevent personal fraud.12 The judicial system had to intervene and overrule the case that brought clarification on the existence of the half-secret trust.

Subsequent to this case (half-secret trust)

As demonstrated earlier, the happenings of the case of Blackwell and Blackwell consequently led to reforms in the judicial system that saw the inclusion of secret trusts into wills. Half secrets, even though they existed partially under unclear circumstances, now came out as a vital part of the secret trusts in the judicial system. The lord who existed by that moment, popularly known as Lord Sumner, ruled using the principles of equity that existed a way back during the case of Fleetwood, [1880] 15 Ch D 59413, considering the previous ruling as logical.14 Lord Sumner in his ruling posited that the principle of equity that permits a trustee of a fully secret trust to fulfil his or her promise, must as well permit the trustee of half-secret trust to behave in a similar way. Thereafter, Lord Sumner outlined three important requirements of a half-secret trust as intention, communication, and acquiescence.15 The testator, trustee, and beneficiary must understand these requirements.

Now it was clear that the half-secret trust had its requirements to become an acceptable trust within the English law. Since half-secret involves a legatee (or devisee) taking the part of a trustee on the face of executing a will, the ruling made by Lord Sumner were inevitably quite imperative following the requirements outlined in the ruling. This will in accordance with any judgments, thus serves as the last testament of the testator where the trust becomes sacrosanct, meaning that it always becomes irrevocable on the death of the testator.16 Under the requirements, that is, the intention of the testator or simply the certainty of intention is a requirement that allows the court to consider the definite words used in the communication by the testator to the trustee. This move includes examining the surrounding circumstances including the testator’s obligation to the trusteeship that helps to investigate if the trust was genuine.

Suggestions to the case

The case revolving around Blackwell and Blackwell [1929] AC 318 forms a crucial part of the judicial law making process in English law. The judges’ ruling, despite making concrete decisions on what possibly remains helpful in future rulings, appears to ignore the importance of having the both secrets properly stated in the will. In the case of a half-secret trust, “the communication must occur before or at the same time during the execution of the will”.17 A secret or even a half-secret trust normally allows the testator to keep confidential information pertaining to certain beneficiaries, something that sequentially and in several occasions leads to controversies. This case still poses dilemmas since according to numerous researchers there is a likelihood of occurrence of fraud, as articulated by Re Snowden [1979] Ch 528. Essentially, “the substantive basis of the secret trust is the imposition of a trust on the benefits received under the Will, and does not affect the operation of the Will itself”.18


Inevitably, laws, policies, and even acts on this universe will keep changing depending on certain occasions or events that trigger actions from the judicial systems. As demonstrated by this paper, despite resulting in significant changes in the secret trust following the case of Blackwell and Blackwell [1929] AC 318, there is no evidence that shows that the ruling made on this case was perfect. Research argues that the case of Blackwell and Blackwell [1929] AC 318, had a perfect chance to lead to the abolition of secret trusts by the judicial systems but it could not manage. Several beneficiaries have continuously suffered after testators engage in unprecedented codicil and secret trust with malicious trustees without proper legal advice, thus leading to controversies. Subsequently, several cases similar to the one mentioned in this essay have continuously dominated the judicial system, with judges failing to provide perfect ruling against those involved in the fraud cases leading to biassed judgements.



Blackwell v Blackwell [1929] AC 318, HL

Re Fleetwood [1880] 15 Ch D 594

Re Snowden [1979] Ch 528

Keen, Re, Evershed v Griffiths [1937] Ch 236


Rule S, ‘Secret trusts: Estate Litigation—2009 Update’ (The Continuing Legal Education Society of British Columbia, 2009). Web.

William J, New Zealand Master Trusts Guide: The Complete Guide to Trust Set-Ups, Trust Busting, Trustees’ Duties and Beneficiaries’ Rights (2nd edn, CCH New Zealand Limited 2005).


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Graham M, Bean G, and Dewar J, Trusts Law: Text and Materials (Cambridge University Press 2005).

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Hull I, ‘Secret Trusts – What are they and are you watching out for them?’ (2001) 5 the Probate.

Lupoi M, Trusts: A Comparative Study (Cambridge University Press 2001).

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Stone J, Legal System and Lawyers’ Reasoning (Stanford University Press 1964).


Primo A, An Act for the Amendment of the Laws with respect to Wills. Wills Act (1837).

Gbolahan E, Explaining Constructive Trusts (The Lawbook Exchange, Ltd. 1990).


  1. Nigel Stockwell and Edwards Richard, Trusts and Equity (7th edn, Longman 2005) 45.
  2. Mohamed Ramjohn, Cases and Materials on Equity and Trusts 4/E (Taylor & Francis, 2008) 86.
  3. John William, New Zealand Master Trusts Guide: The Complete Guide to Trust Set-Ups, Trust Busting, Trustees’ Duties and Beneficiaries’ Rights (2nd edn, CCH New Zealand Limited, 2005) 56.
  4. Rule (n 1) 11.
  5. Snowden Re [1979] Ch 528
  6. Richard Clements, and Abass Ademola, Equity & Trusts: Text, Cases, and Materials (2nd edn, Oxford University Press, 2011) 89.
  7. Snowden Re [1979] Ch 528
  8. Maurizio Lupoi, ‘Trusts: A Comparative Study (Cambridge University Press 2001) 164.
  9. Ian Hull, ‘Secret Trusts – What are they and are you watching out for them?’ (2001) 5 The Probater 55
  10. Re Keen, Evershed v Griffiths case [1937] Ch 236
  11. Elias Gbolahan, Explaining Constructive Trusts (The Law book Exchange, Ltd.1990) 111.
  12. Rebecca Probert, and Roger Blanpain, Family Law in England and Wales (Kluwer Law International, 2011) 83.
  13. Fleetwood ,Re [1880] 15 Ch D 594
  14. Moffat Graham, Gerry Bean, and John Dewar, Trusts Law: Text and Materials (Cambridge University Press 2005) 120.
  15. Stephen Penner, The Law of Trusts (Core Texts Series) (8th edn, Oxford University Press 2012) 69.
  16. Samantha Hepburn, Australian Principles: Equity and Trusts (2nd edn, Routledge 2001) 58.
  17. Gbolahan (n 9) 75.
  18. Hull (n 8) 56.
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