Q: I intend to give away one of my properties to my favourite child who took care of me when I am sick. I do not want this to be revealed in my will. What can I do?
A: You may sign a secret trust to give away that property of yours to your favourite son upon your death.
Q: How does a secret trust work?
A: A will is a public document open to scrutiny. Under a secret trust arrangement, you may leave the property to a trustee in the will. The trustee will hold the property via a separate secret trust for the benefit of the intended recipient.
For example, A has 3 sons, i.e. X, Y and Z. A wants to keep it a secret who his property in Mont Kiara will be given to in his will. Instead of stipulating either X, Y or Z will be the beneficiary under the will, A will bequeath his property in Mont Kiara to B. B will then hold the property in Mont Kiara under a separate secret trust to Z, the favourite son. The name of the favourite son Z will not be revealed in the will.
Q: Is secret trust valid in Malaysia?
A: Secret trust is valid in Malaysia. There is no contradiction between the doctrine of secret trusts and the Wills Act 1959. A secret trust provides a degree of privacy in the final disposal of the testator’s will. A secret trust is made outside and independently of the will. There is an independent obligation accepted by the trustee under a secret trust. A secret trust operates outside the formalities of the Will Act 1959. A secret trust protects and respects the testamentary freedom of the testator.