Simon Steele-Williams - Partner, Coles Miller

Secret Trusts: Contesting A Trust6th Aug 2014

There’s a theory that wrapping up a will in a secret trust can make it harder to contest.Simon Steele-Williams - Partner, Coles Miller

The idea is that an estate is left to trustees who then divide the assets as they see fit, according to the original wishes of the testator.

It lends the whole business an air of secrecy. Surviving family and friends do not know if they are likely to benefit or not. Only the trustees know.

But just because something is secret does not make it untouchable.

Trusts are still open to challenges – although this tends to be quite unusual. It is less common than disputing a will written outside a trust.

Trust disputes fall into two types – friendly (in which everyone co-operates to solve an ambiguity in the terms) and hostile (in which someone challenges the trust as a whole).

There are various ways in which a trust may be challenged. They include:

  • Rectification claims – concerns that the trust’s terms have not been recorded properly, an application for a document to be rewritten
  • Construction summons – to clear up an ambiguity in the way the trust was written (one of the most common applications)
  • Ascertaining beneficiaries – the terms of the trust are clear and correct but there is uncertainty over who will benefit.
  • Allegations that the trust is a sham or an attempt to avoid paying creditors.

As with disputed wills, the typical funding route is ‘No Win No Fee’ (following cuts to Legal Aid).

To find out more about contesting a trust, contact Simon Steele-Williams, a Partner at Coles Miller Solicitors in Bournemouth, 01202 293226.