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Once conceptual difficulty which emerges from this doctrine is that of deciding how to categorise the secret trust between the various possibilities of express trust, constructive trust and a rule based on the equitable principles of preventing fraud.
The reasons why testators fail to comply with the requisite formalities are various, but the two most common are to avoid publictity and to produce an ability to change their minds without the need for a codicil.
The motive for the avoidance of publicity comes from the fact that wills are public documents; anyone can inspect a will.
In practice, judges solve the problems in each case according to the needs of the parties and to do justice using the established law of secret trusts.
As a result, there is no conceptual need to apply different rules to the two forms of secret trusts or even to continue to distinguish between them.
Secret trusts are problematic because, to prove the existence of the trust, evidence which is not in the form required by s.9 Wills Act 1837 will have to be admitted.