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Trusts - 1960- 1969

Trusts law. This also covers law relating to trustees and trusteeship. See also Equity.

These cases are extracted from a very large database. The entries on that database are now being published individually to the main swarb.co.uk website in a much improved form. As cases are published here, the entry here will be replaced by a link to the same case in that improved form on swarb.co.uk. In addition the swarb.co.uk site includes very substantial numbers of cases after 2000. Please take the time to look.  

This page lists 53 cases, and was prepared on 06 June 2013. These case are being transferred one by one to the main swarb.co.uk site which presents them better, with links to full text where we have it, and much improved cross referencing.
In re Moritz [1960] Ch 251
1960
CA
Wynn-Parry LJ
Trusts, Costs, Litigation Practice Casemap

1 Citers
Trustees had denied the defendants a sight of the exhibits to affidavits. Their' counsel argued for a settled practice that where an application is made by trustees for directions of the Beddoe kind, then the proposed defendant beneficiaries should not necessarily see all the evidence relating to the dispute. Counsel for the proposed beneficiary defendants, argued that he should be entitled to attend argue for his clients, on all matters including ones based on the so-far denied exhibits, and that it was for the Judge to say if those arguments were heard in the presence of parties other than the trustees who sought the directions of the court, though where one was considering beneficiaries and where their trust estate might bear the expense of the proposed litigation, it was beneficiaries' money that was being spent or being proposed to be spent. Held: Wynn-Parry J said: "Speaking for myself, so far as I know, it has been the practice of this court, without exception, over a great many years, that where, in such a case as this, application is made by a trustee ex necessis where there are disputes, for directions from the court as to whether or not proceedings should be brought against the defendants, those defendants are not entitled to be heard upon that application. The court acts upon such evidence as is placed before it and it expresses itself one way or the other." and
"As I understand it, the practice in this Division is that where a trustee finds it is compelled to ask for the directions of the court as to whether or not certain proceedings should be taken, while it is proper and indeed necessary to join the parties against whom the proposed relief is sought, those parties should not be present in Chambers when the matter is debated; and they should not be furnished with the evidence upon which the court is asked to act… Very frequently, the leave to proceed is limited, for instance, up to discovery, but it would seem to me to be a quite unjustified inroad upon what I conceive to be a very useful practice if I were to allow this application and to allow the two defendants not merely to be present at the beginning of the proceedings when the originating summons is heard, but to remain there throughout those proceedings and to have all the evidence on which the trustees are asking the court for its directions. I know of no precedent for it, and, in my view, it is completely against the established practice."
Re Steed's Will Trusts; CA 1960
Jones -v- Challenger; CA 1960
Re Endacott [1960] Ch 232
1960

Charity, Trusts

Non-charitable purpose trusts are anomalous.
Compton -v- Compton; FD 1960
In Re Collard's Will Trusts; 1961
Re Burney's Settlement Trusts [1961] 1 WLR 545
1961
ChD
Wilberforce J
Trusts Casemap

The court approved a proposed variation of a trust.
Wissenbruch -v- Wissenbruch 1961 SC 340
1961

Scotland, Trusts
1 Citers
In Re Pilkington's Will Trusts; Pilkington -v- Inland Revenue Commissioners [1961] Ch 466
1961
CA
Upjohn LJ
Trusts Casemap

1 Citers
in Re Pilkington's Will Trusts; Pilkington -v- Inland Revenue Commissioners; CA 02-Jan-1961
In Re Pilkington's Will Trusts; Pilkington -v- Inland Revenue Commissioners; HL 1962
Hine -v- Hine [1962] 1 WLR 1124
1962
CA
Lord Denning MR
Trusts
1 Citers
Lord Denning MR: "the jurisdiction of the court over family assets under section 17 is entirely discretionary. Its discretion transcends all rights, legal or equitable, and enables the Court to make such order as it thinks fit. This means, as I understand it, that the Court is entitled to make such order as appears to be fair and just in all the circumstances of the case."
Married Women's Property Act 1882 17
In re Hubbard's Will Trusts; 1962
In Re Druce's Settlement Trusts; ChD 1962
Neville Estates Ltd -v- Madden [1962] Ch 832
1962
ChD
Cross J
Trusts
1 Citers
A charitable trust was created for the benefit of the members of Catford Synagogue. Held: The court considered two categories of valid non-charitable purpose gifts: (1) an absolute gift to members of an association at the date of the gift, under which the members take as joint tenants, and any member can sever his share; or (2) a trust for the members at the date of the gift, subject to their contractual rights and liabilities towards one another as members of the association.
Chettiar -v- Chettiar; PC 14-Feb-1962
New Zealand Netherlands Society "Oranje" Inc -v- Laurentuis Cornelis Kuys [1973] 1 WLR 1126
1963
PC
Lord Wilberforce
Trusts, Commonwealth Casemap
1 Cites
1 Citers
(New Zealand) The scope of a fiduciary duty may be modified by a course of dealing by the person to whom the duty is owed. "The obligation not to profit from a position of trust, or, as it sometimes relevant to put it, not to allow a conflict to arise between interest and duty, is one of strictness. The strength, and indeed the severity, of the rule has recently been emphasised by the House of Lords in Phipps v. Boardman …. It retains its vigour in all jurisdictions where the principles of equity are applied. Naturally it has different applications in different contexts. It applies, in principle, whether the case is one of a trust, express or implied, of partnership, of directorship of a limited company, of principal and agent, or master and servant, but the precise scope of it must be moulded according to the nature of the relationship." A trustee seeking to to obtain a benefit or incur or enter into any transaction which is a prima facie breach of his fiduciary duties, must make full and frank advance disclosure.
Wilson -v- Wilson [1963] 1 WLR 1470
1963
CA
Trusts Casemap

Re Pauling's Settlement Trusts (No.1) [1963] EWCA Civ 5; [1964] Ch 303; [1963] 3 All ER 1; [1963] 3 WLR 742
29 May 1963
CA
Equity, Limitation, Trusts

The doctrine of laches has no application to cases to which the Statutes of Limitation apply either expressly or by analogy.
The court considered the exercise of a power by the trustees: "Being a fiduciary power, it seems to us quite clear that the power can be exercised only if it is for the benefit of the child or remoter issue to be advanced or, as was said during argument, it is thought to be 'a good thing' for the advanced person to have a share of capital before his or her due time. That this must be so, we think, follows from a consideration of the fact that the parties to a settlement intend the normal trusts to take effect, and that a power of advancement be exercised only if there is some good reason for it. That good reason must be beneficial to the person to be advanced; it cannot be exercised capriciously or with some other benefit in view. The trustees, before exercising the power, have to weigh on the one side the benefit to the proposed advancee, and on the other hand the rights of those who are or may hereafter become interested under the trusts of the settlement."
[ Bailii ]
Re Pauling's Settlement Trusts (No 2) [1963] 1 All ER 857; [1963] 3 WLR 742; [1963] Ch 576
1 Jun 1963

Wilberforce J
Trusts Casemap
1 Cites
1 Citers
An application was made for the trustee to be replaced. The trustee complained that he would remain liable in certain events, and sought an indemnity from any new trustee out of the trust fund. Held: A new trustees would be under "the normal duty of preserving an equitable balance, and if at any time it was shown they were inclining one way or the other, it would not be a difficult matter to bring them to account." The court asked to what extent a trustee may have a lien over the trust fund for the liabilities to which that trustee may be subject.
In re Eaton [1964] 1 WLR 1269
1964

Trusts Casemap

In re Buckton's Settlement Trusts; 1964
Re Van Gruisen's Will Trusts; ChD 1964
In re T's Settlement Trusts; ChD 1964
Londonderry, Re; Henry Peat -v- Lady Helen Maglona Walsh [1964] EWCA Civ 6; [1964] 3 All ER 855; [1965] Ch 918; [1965] 2 WLR 229
3 Nov 1964
CA
Harman LJ, Danckwerts LJ, Salmon LJ
Trusts
1 Citers
Trustees exercising a discretionary power are not bound to disclose to their beneficiaries the reasons actuating them in coming to a decision.
[ Bailii ]
Bedson -v- Bedson [1965] 2 QB 666
1965
CA
Lord Denning MR, Russell LJ
Family, Trusts

Severance of a joint tenancy might not automatically lead to a tenancy in common in equal shares (Lord Denning)
Married Women's Property Act 1882 17
In re DML [1965] Ch 1133
1965

Trusts, Health Casemap
1 Citers
Phipps -v- Boardman [1965] Ch 992
1965
CA
Lord Denning MR
Trusts Casemap
1 Citers
In Re Jones Will Trusts; ChD 11-Jan-1965
Phipps -v- Boardman; HL 1966
Re Clore's Settlement Trusts; ChD 1966
In re Lysaght (deceased) [1966] Ch 191
1966

Buckley J
Trusts, Charity
1 Citers
A general charitable purpose (or intention) should be recognised and given effect to, even though some particular directions given by the charity's founder are (or become) impracticable.
re Tilley’s Will Trusts [1967] Ch 1179
1967
ChD
Ungoed-Thomas J
Trusts

1 Citers
The court considered the rights of a beneficiary to participate in any profit which resulted where a trustee mixed trust money with his own money and then used it to purchase other property.
Holder -v- Holder; In re Frank Holder dec [1967] EWCA Civ 2; [1968] Ch 353; [1968] 1 All ER 665; [1968] 2 WLR 237
8 Dec 1967
CA
Harman LJ, Danckwerts LJ, Sachs LJ
Wills and Probate, Trusts
1 Citers
Link[s] omitted
Holmden's Settlement Trusts, Re Holmden's Settlement, Re [1968] AC 685; [1967] UKHL 7
13 Dec 1967
HL
Lord Reid, Lord Guest, Lord Wilberforce
Trusts, Torts - Other

1 Citers
Under the 1968 Act, the court is not in the position of a statutory settlor. Lord Reid described the provisions of the 1958 Act: "Under the Variation of Trusts Act the court does not itself amend or vary the trusts of the original settlement. The beneficiaries are not bound by variations because the court has made the variation. Each beneficiary is bound because he has consented to the variation. If he was not of full age when the arrangement was made he is bound because the court was authorised by the Act to approve of it on his behalf and did so by making an order. If he was of full age and did not in fact consent he is not affected by the order of the court and he is not bound. So the arrangement must be regarded as an arrangement made by the beneficiaries themselves. The court merely acted on behalf of or as representing those beneficiaries who were not in a position to give their own consent and approval.
So we have an alteration of the settlement which was not made by the settlor or by the court as being empowered to make it, but which was made by the beneficiaries quite independently of the settlor or of any power, express or implied given or deemed to have been given by him."
Lord Guest: "Section 1 of the Act enabled the court to give approval to an arrangement on behalf of such persons as were unable by incapacity or otherwise to give their approval. The court thus supplied the capacity which the incapax lacked."
Lord Wilberforce: "If all the beneficiaries under the settlement had been sui juris, they could, in my opinion, have joined together with the trustees and declared different trusts which would supersede those originally contained in the settlement. Those new trusts would operate proprio vigore, by virtue of a self-contained instrument - namely, the deed of arrangement or variation. The original settlement would have lost any force or relevance. The effect of an order made under the Variation of Trusts Act, 1958, is to make good by act of the court any want of capacity to enter into a binding arrangement of any beneficiary not capable of binding himself and of any beneficiary unborn: the nature and effect of any arrangement so sanctioned is the same as that I have described."
Variation of Trusts Act 1958 1
[ Bailii ]
The Carnegie Trustees for the Universities of Scotland -v- The University of St Andrews; HL 1968
Selangor United Rubber Estates Ltd -v- Cradock (No 3); ChD 1968
Re Weston's Settlement Trusts; CA 1968
Gartside -v- Inland Revenue Commissioners [1968] AC 553
1968
HL
Lord Reid, Lord Wilberforce, Viscount Dilhorne
Trusts

Lord Reid: "no object of a discretionary trust has, as such, any legal right to or in the capital" and ""In possession" must mean that the interest enables you to claim now whatever may be the subject of the interest. For instance, if it is the current income from a certain fund your claim may yield nothing if there is no income, but your claim is a valid claim, and if there is any income you are entitled to get it. But a right to require trustees to consider whether they will pay you something does not enable you to claim anything. If the trustees do decide to pay you something, you do not get it by reason of having the right to have your case considered: you get it only because the trustees have decided to give it to you."
Lord Wilberforce said that the circumstances in which a beneficiary under a discretionary trust may seek protection, and the nature of the protection he may expect to obtain, will depend on the court's discretion.
in Re Wallace's Settlements; ChD 1968
Re Ball's Settlement Trusts [1968] 1 WLR 899; [1968]
1968

Megarry J
Trusts Casemap
1 Citers
Ulrich -v- Ulrich and Felton [1968] 1 WLR 180
1968
CA
Lord Denning MR and Diplock LJ
Trusts

The parties had married, but bought a house when engaged. She had paid one-sixth of the acquisition cost in cash, and he raised the balance by a mortgage in his name. Held: It was wrong to treat a mortgage contribution as equivalent to a cash contribution.
Protheroe -v- Protheroe; CA 01-Feb-1968
Whishaw -v- Stephens (on appeal from In re Gulbenkian's Settlement) (No 1); HL 31-Oct-1968
Barclays Bank Ltd -v- Quistclose Investments Ltd; etc; HL 31-Oct-1968
In re Abrahams' Will Trusts; 1969
in Re: Abrahams' Will Trust [1969] 1 Ch 463
1969
ChD
Cross J
Trusts Casemap

The trustees of a 1948 settlement had advanced funds in 1957 by way of a new settlement, the terms of which did not comply with the rule against perpetuities. Not all the terms of the 1957 settlement would infringe the rule against perpetuities, but the effect of the rule was extensive. For example a child had a life interest subject to protective trusts. The effect of the rule was that the life interest was valid but that the discretionary trusts arising on forfeiture would be invalid, so that, upon a forfeiture, the property would be held on the trusts of the original 1948 settlement. The argument in favour of holding the advancement wholly void was advanced by the Inland Revenue. Held. The revenue succeeded.
Cross J said: "The power which the trustees purported to exercise by setting up Carole's fund (to take her as an example) and declaring the trusts of it which are contained in the 1957 settlement was a power exercisable for the benefit of Carole, and for nobody else. The various other persons to whom the settlement purported to give benefits were not objects of that power of advancement. The position was that the trustees had a discretion as to the manner in which they would benefit Carole, and they considered that an appropriate way to benefit her would be to create this settlement under which beneficial interests were given to other members of her family besides herself. If one looks at the matter in that way, it seems to me reasonable to hold that the effect of the invalidity of some of the limitations in the settlement by reason of the rule against perpetuities may not be the same as it would have been had the settlement been created by the exercise of a special power of appointment under which all the supposed beneficiaries were objects. It is one thing to say that if a trustee has power to appoint a fund to all or any of a class of objects and he appoints a life interest to one object which is not void for perpetuity and remainders to other objects which are void, then the life interest survives the invalidity of the remainders; but it is another thing to say that if a trustee has power to benefit A. in a number of different ways and he chooses to benefit him by making a settlement on him for life with remainders to his issue, which remainders are void for perpetuity, then A can claim to obtain that part of the benefit intended for him which is represented by the life interest. The interests given to separate objects of an ordinary special power are separate interests, but all the interests created in Carole's fund were intended as part and parcel of a single benefit to her." and
"Of course, it may well be that, if the invalidity caused by the operation of the rule against perpetuities is quite small as compared with the parts of the settlement which are unaffected by the rule, the court might be prepared to say that the valid parts of the settlement would survive intact. Thus Lord Evershed MR held in the Vestey case that the exercise of the discretion there could be upheld notwithstanding the fact that the trustees were to some extent under a misapprehension as to what its effect would be. But here there is no doubt that the effect of the operation of the rule is wholly to alter the character of the settlement. In my judgment the result of that must be that there never was a valid exercise by the trustees of the power of advancement."
In Re Holt's Settlement; ChD 1969
Denvir -v- Denvir 1969 SLT 301
1969

Scotland, Trusts Casemap
1 Citers
In re Denley's Trust Deed [1969] 1 Ch 373
1969
Chd
Goff J
Trusts Casemap
1 Citers
The trustees of land in Gloucestershire were to maintain the land as a sports ground for the benefit of the employees of a company and also for "such other person or persons (if any) as the trustees may allow to use the same . . ." The Deed contained a perpetuity clause providing that if (a) the number of employees subscribing 2d per week each should be less than 75% of the workforce, or (b) if the land was no longer required as a sports ground, or (c) if the company went into liquidation, then the trustees were to convey the land to the General Hospital Cheltenham or as it should direct. The court was asked whether the trust and the gift over were valid. The company argued that the trust was invalid because of the absence of certainty as to beneficiaries, and the fund was therefore held for the company. For the employees it was argued that the trust was valid, but the gift over was invalid. It was held that the trust and the gift over were valid. "Where, then, the trust, although expressed as a purpose, is directly or indirectly for the benefit of an individual or individuals, it seems to me that it is in general outside the mischief of the beneficiary principle. . . The trust in the present case is limited in point of time so as to avoid any infringement of the rule against perpetuities and . . . it does not offend against the beneficiary principle; and unless, therefore, it is void for uncertainty, it is a valid trust. As it is a private trust and not a charitable one, it is clear that, however it be regarded, the individuals for whose benefit it is designed must be ascertained or capable of ascertainment at any given time …"
Re CL [1969] 1 Ch 587
1969

Trusts

Trustees sought the court permission to distribute assets in such a way as to extinguish the beneficiary's interest in favour of her adopted children with a consequent saving of estate duty on her death with no real detriment to the material position of the beneficiary. Held: The word benefit included the proposed arrangement.
Carl Zeiss Stiftung -v- Herbert Smith No.2; CA 1969
Pettitt -v- Pettitt; HL 23-Apr-1969

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