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Trusts - From: 1970 To: 1979

This page lists 49 cases, and was prepared on 02 April 2018.

 
Tinker v Tinker [1970] P 136; [1970] 1 All ER 540
1970
CA
Nicholas LJ, Lord Denning MR, Cross LJ
Family, Trusts
The husband bought a business in Cornwall and a house for his family. At first he intended to buy the house in his own name, but was advised that if the venture failed, the house could be taken by his creditors as part of his business assets. It was put in his wife’s name and all was explained to his wife by the solicitors. The marriage broke down. The husband applied for a declaration that the wife held the house on trust for him. The registrar found that the husband was an honest businessman, intending and able to honour his financial commitments and held that he had rebutted the presumption of advancement and made the declaration sought. Held: The wife's appeal succeeded. The husband, being an honest man, must have genuinely intended that the house should belong to his wife because that was the only honest intention he could have. The Court must weigh, or balance, the adverse consequences of granting relief against the adverse consequences of refusing relief. The ultimate decision calls for a value judgment.
Salmon LJ: “The husband is in an inescapable dilemma. Either he is honest, in which case the house belongs to his wife; or he is dishonest. The registrar has found that he is honest.” and "The burden of displacing the presumption of advancement is therefore on the husband. This burden can in many cases be displaced without much effort. It seems to me, however, that in this case the husband's evidence, far from displacing the presumption, has done much to reinforce it."
"The burden of displacing the presumption of advancement is therefore on the husband. This burden can in many cases be displaced without much effort. It seems to me, however, that in this case the husband's evidence, far from displacing the presumption, has done much to reinforce it." Having referred to the husband's evidence as to the advice given by the solicitor and having pointed out that there would have been nothing wrong in the husband's putting the property into his wife's name in order to protect it from his creditors, Salmon LJ continued: "It seems to me to follow from the registrar's finding that he was an honest man that the husband must have intended that the house should belong to his wife. That is why I say that his evidence strengthens the presumption of advancement. As far as I can see, the only possible alternative to what I have just described would be the husband dishonestly putting the house in his wife's name with the intention of himself having the beneficial interest in it, and also with the intention, when he failed in business, to go to his creditors and say quite untruthfully and dishonestly: ´I have no interest in this house. You can look at the documents, and they are plain enough to show that I have none.' The registrar negatived that dishonest frame of mind, and certainly this court would not interfere with that finding."
Lord Denning MR: “So it is plain that the husband had the house put into his wife’s name so as to avoid any risk of it being taken by his creditors in case his business was not a success. What is the result in law? In Gascoigne v Gascoigne [1918] 1 K.B. 223, it was held that when a husband put a house in his wife’s name so as to avoid it being taken by his creditors, the house belonged to the wife. The husband could not be heard to say that it belonged to him because he could not be allowed to take advantage of his own dishonesty. That case was applied In re: Emery’s Investment Trusts [1959] Ch. 410; and also McEvoy v Belfast Banking Co. Ltd. [1934] N.I. 67. We were invited by Mr Wheatley to overrule those decisions but in my opinion they are good law.” He considered the attempts of counsel to distinguish the facts of that case from the authorities that he had quoted and concluded: “But whether the solicitor gave that advice or not, I am quite clear that the husband cannot have it both ways. So he is on the horns of a dilemma. He cannot say that the house is his own and, at one and the same time, say that it is his wife’s. As against his wife, he wants to say that it belongs to him. As against his creditors that it belongs to her. That simply will not do. Either it was conveyed to her for her own use absolutely: or it was conveyed to her as trustee for her husband. It must be one or the other. The presumption is that it was conveyed to her for her own use: and he does not rebut that presumption by saying that he only did it to defeat his creditors. It belongs to her.”
1 Cites

1 Citers


 
Falconer v Falconer [1970] 3 All ER 449
1970
CA

Trusts, Family

1 Citers


 
Barclay v Barclay [1970] 2 QB 677
1970


Land, Trusts

1 Citers


 
Spens v Inland Revenue Commissioners [1970] 1 WLR 1173; [1970] 3 All ER 295
1970
ChD
Megarry J
Trusts
The court declared the exercise of a power of appointment to create a sub-trust void under the rule against perpetuities.
1 Citers


 
In Re Remnant [1970] 1 Ch 560
1970
ChD
Pennycuick J
Trusts
Approval was sought of a proposed deed varying trusts created in the will. Held: The testator's intention would be defeated by the proposed arrangement which involved the deletion of the forfeiture provision dependant upon the beneficiary's practice of the Roman Catholic faith. Pennycuick J said: "That was serious but by no means a conclusive consideration". The forfeiture provision plainly expressed a strongly held wish on the part of the testator as to who should not benefit under his will. The court agreed to approve the variation, because it was beneficial to all concerned.
1 Citers


 
McPhail v Doulton (on appeal from In re Baden's Deed Trusts) [1971] AC 424; [1970] UKHL 1; [1970] 2 All ER 228
6 May 1970
HL
Lord Reid, Lord Hodson, Lord Guest, Viscount Dilhorne, Lord Wilberforce
Trusts
The settlor asked whether the test for validity, in point of certainty of objects, is the same for trusts and powers, or whether the test for trusts is more demanding. Held: The test is the same. The context was a provision, held to be a trust, for trustees to distribute income "to or for the benefit of any of the officers and employees or ex-officers or ex-employees of [a named company] or to any relatives or dependants of any such persons" (with a power for the trustees to hold up income which did not, prevent the trustees distributing the retentions as income). The distinction between trusts, trust powers, and powers is narrow and artificial. What is to one a power of distribution coupled with a trust to dispose of the undistributed surplus, by accumulation or otherwise, may to another appear as a trust for distribution coupled with a power to withhold a portion and accumulate or otherwise dispose of it. It is not satisfactory that the validity of a disposition should depend on such delicate shading. To say that there is no obligation to exercise a mere power whereas a trust is mandatory and its execution may be compelled does not contain an exhaustive comparison of the trustees' duties. Any trustee would surely make it his duty to know what is the permissible area of selection and then consider responsibly, in individual cases, whether a contemplated beneficiary was within the power and whether, in relation to other possible claimants, a particular grant was appropriate. A trustee with a duty to distribute, even among a potentially very large class, would not require the preparation of a complete list of names, but consider by class and category; and then select individuals according to their needs or qualifications. Can it be said that he is not carrying out the trust? There are differences between trust (trust powers) and powers, but as regards validity, they are not so great that complete, ascertainment is needed, for one but not in the other? Any distinction may lie in the extent of the survey which the trustee is to carry out. The difference may be one of degree rather than of principle. Trusts and powers are often blended, and the mixture may vary in its ingredients." A private trust for a large class of individuals can be so large as to make a private trust unworkable, and hence void.
1 Citers

[ Bailii ]

 
 Gissing v Gissing; HL 7-Jul-1970 - [1970] 3 WLR 255; [1971] AC 886; [1970] 2 All ER 780; [1970] UKHL 3

 
 Allan's Trustes v Lord Advocate; HL 1971 - 1971 SC (HL) 45; [1970] UKHL 7; [1970] TR 417; 1971 SLT 62
 
In re W (EEM) [1971] Ch 123
1971

Mr Justice Ungoed-Thomas
Health, Trusts
It would be for the "benefit" of the patient to exercise the powers conferred by section 95(1) of the 1983 Act so as to enable there to be done something which the patient would have wished to do if he had been able to act for himself.
1 Citers


 
Hodgson v Marks [1971] EWCA Civ 8; [1971] Ch 892; (1971) 22 P & CR 586; [1971] 2 WLR 1263; [1971] 2 All ER 684
12 Mar 1971
CA
Russell, Buckley, Cairns LJJ
Registered Land, Trusts
The plaintiff had transferred her house to her lodger, expressing it to be for her love and affection for him. The judge at first instance had held that the true intention of the plaintiff had been that she would continue to live there as before and that she owned the equity. The lodger had sold the title to the defendant who bought it with the assistance of a mortgage. He knew of her presence in the house, but not of the arrangement. The court was now asked as to the resulting position within the 1925 legislation. Held: A registered proprietor, not being a purchaser for value and without notice of an occupier's interests, will hold the legal estate on Trust for the occupier with no right to assign the equity.
Land Registration Act 1925 70(1)(g) - Law of Property Act 1925 53
1 Cites

1 Citers

[ Bailii ]

 
 In re Sharp's Settlement Trusts; 1972 - [1973] Ch 331; (1972) 36 Conv 436
 
Ottaway v Norman [1972] 1 Ch 698
1972
ChD
Brightman J
Trusts, Wills and Probate
Considering secret trusts and the doctrine of mutual wills, the Court held: "It will be convenient to call the person upon whom such a trust is imposed the 'primary donee' and the beneficiary under that trust the 'secondary donee.' The essential elements which must be proved to exist are: (i) the intention of the testator to subject the primary donee to an obligation in favour of the secondary donee; (ii) communication of that intention to the primary donee; and (iii) the acceptance of that obligation by the primary donee either expressly or by acquiesence."
1 Citers


 
Cooke v Head [1972] 2 All ER 38; [1972] 1 WLR 518
1972
CA
Lord Denning MR
Trusts



 
 Hazell v Hazell; CA 1972 - [1972] 1 All ER 923; [1972] 1 WLR 301
 
Industrial Development Consultants Ltd v Cooley [1972] 1 WLR 443
1972

Roskill J
Trusts, Company
Mr Cooley was the managing director of the claimant. His duties included procuring business in the field of developing gas depots. The company had unsuccessful negotiations with the Eastern Gas Board for the development of four depots. However, the Gas Board were not prepared to let the contracts to the company. The Gas Board subsequently approached Mr Cooley in his private capacity; and indicated that they would be prepared to contract with him personally. In the course of the meeting, Mr Cooley acquired knowledge that the company did not have; and would have wanted to have. Mr Cooley therefore resigned his office (on the basis of a false excuse) and entered into the contracts with the Gas Board. Held: He was accountable for the profit. Where a fiduciary obtains a benefit in breach of his fiduciary duty, he is liable to account even if the beneficiary could not itself have obtained that benefit or opportunity. A company director owes a fiduciary duty to report relevant information of concern to the company: "Information which came to [the director] while he was managing director and which was of concern to [the company] and was relevant for [the company] to know, was information which it was his duty to pass on to [the company] because between himself and [the company] a fiduciary relationship existed …" and "Therefore, I feel impelled to the conclusion that when the defendant embarked on this course of conduct of getting information … using that information and preparing those documents … and sending them off…, he was guilty of putting himself into the position in which his duty to his employers, the plaintiffs, and his own private interests conflicted and conflicted grievously. There being the fiduciary relationship I have described, it seems to me plain that it was his duty once he got this information to pass it to his employers and not to guard it for his own personal purposes and profit. He put himself into the position when his duty and his interests conflicted."
1 Citers



 
 McFarlane v McFarlane; CANI 1972 - [1972] NI 59
 
Cowcher v Cowcher [1972] 1 WLR 425
1972

Bagnall
Trusts
Where property is to be transferred into the names of two or more people, solicitors should take the instructions of transferees as to the beneficial interests in the transferred property.
1 Citers


 
Re Recher's Will Trusts [1972] Ch 529
1972
ChD
Brightman J
Trusts, Wills and Probate
The deceased gave a share of the residue, to "The Anti-Vivisection Society, 76 Victoria Street, London S.W.1." She died in 1962 and her husband died in 1968. Until the end of 1956 a non-charitable unincorporated society, known as the "London and Provincial Anti-Vivisection Society" had carried on its activities at 76 Victoria Street, but in 1957 it was amalgamated with a larger non-charitable unincorporated society, known as "The National Anti-Vivisection Society" of 27 Palace Street, London S.W.1. and the Victoria Street premises were closed down. It changed its name to "The National Anti-Vivisection Society (incorporating the London and Provincial Antivivisection Society)." In 1963 the National Anti-Vivisection Society Ltd was incorporated and the assets were vested in it. It was not a charity. The gift had to be construed as a gift to the London and Provincial Anti-Vivisection Society, 76 Victoria Street, and not to the larger combined society. It was not to be construed as a gift in trust for the purposes of the Society. It could have taken effect as a legacy to the members of the society beneficially, as an accretion to the funds which constituted the subject matter of the contract by which the members had bound themselves inter se. But since the Society had been dissolved, the gift could not be construed as a gift to the members of a different association and they therefore failed. A trust for non-charitable purposes, as a distinct from a trust for individuals, was clearly void because there is no beneficiary.
But: "It does not, however, follow that persons cannot band themselves together as an association or society, pay subscriptions and validly devote their sums in pursuit of some lawful non-charitable purpose. An obvious example is a members' social club. … Such an association is bound … to have some sort of constitution; that is to say, the rights and liabilities of the members of the association will inevitably depend on some form of contract inter se, usually evidenced by a set of rules .. As and when a member paid his subscription to the association, he would be subjecting his money to the disposition and expenditure thereof laid down by the rules … The resultant situation, on analysis, is that the … society represented an organisation of individuals bound together by a contract under which their subscriptions became, as it were, mandated towards a certain type of expenditure ... Just as the two parties to a bi-partite bargain can vary or terminate their contract by mutual assent, so it must follow that the life members, ordinary members and associate members of the … society could, at any moment of time, by unanimous agreement (or by majority vote, if the rules so prescribe), vary or terminate their multi-partite contract. There is no private trust or trust for charitable purposes or other trust to hinder the process."
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In re Baden (No.2) [1972] EWCA Civ 10; [1972] 2 All ER 1304; [1972] 3 WLR 250; [1973] Ch 9
27 Mar 1972
CA
Sachs, Megaw, Stamp LJJ
Trusts
The deceased had established a trust fund for the welfare of employees of his company. After his death his executors said that the trusts were wholly void.
[ Bailii ]
 
Hussey v Palmer [1972] 1 WLR 1286; [1972] 3 All ER 744; [1972] EWCA Civ 1
22 Jun 1972
CA
Lord Denning MR, Phillimore, Cairns LJJ
Equity, Trusts
A mother had provided a sum to her daughter and son in aw when she moved in with them. The money was used to build an extension. She now appealed against a finding that she did not have an equitable interest in the house. Held: lord Denning MR adopted a free-ranging remedial basis for constructive trusts and came to the view that: "The two [resulting trust and constructive trust] runs together. By whatever name it is described, it is trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded upon large principles of equity, to be applied in cases where the defendant cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or a share in it."
[ Bailii ]
 
Falkiner and Another v The Commissioner of Stamp Duties [1972] UKPC 21; [1973] AC 565; [1973] STC 85; [1973] 1 All ER 598; [1972] TR 297; [1973] 2 WLR 334
7 Nov 1972
PC
Reid, Morris of Borth-y-Gest, Dilhorne, Simon of Glaisdale LL, Sir Richard Wild
Commonwealth, Wills and Probate, Trusts
New South Wales - The settlor had made a settlement on 4 October 1961 and died 11 days later. The ultimate trust was in favour of 'the next of kin of the settlor as determined by the provisions now in force of the Wills, Probate and Administration Act 1898-1954 of the State of New South Wales'. There was a claim for death duties on the settled property, and one of the issues was whether the clause contained 'a trust . . . to take effect after [the deceased person's] death' within section 102(2)(a) of the Stamp Duties Act 1920-1959. Held: The next of kin were to be determined at the settlor's death, not at the date of the settlement, and death duties were payable accordingly.
1 Citers

[ Bailii ]
 
Re Vandervell's Trusts (No 2) [1974] 1 Ch 269
17 Jul 1973
ChD
Megarry J
Trusts
The court considered the requirement that a proposed beneficiary must establish some positive act on the part of the person creating the trust for that person to be bound by the trust asserted. Megarry J said: "(1) If a transaction fails to make any effective disposition of any interest it does nothing. This is so at law and in equity, and has nothing to do with resulting trusts. (2) Normally the mere existence of some unexpressed intention in the breast of the owner of the property does nothing: there must at least be some expression of that intention before it can effect any result. To yearn is not to transfer. (3) Before any doctrine of resulting trust can come into play, there must at least be some effective transaction which transfers or creates some interest in property. (4) Where A effectually transfers to B (or creates in his favour) any interest in any property, whether legal or equitable, a resulting trust for A may arise in two distinct classes of case. For simplicity, I shall confine my statement to cases in which the transfer or creation is made without B providing any valuable consideration, and where no presumption of advancement can arise; and I shall state the position for transfers without specific mention of the creation of new interests. (a) The first class of case is where the transfer to B is not made on any trust. If, of course, it appears from the transfer that B is intended to hold on certain trusts, that will be decisive, and the case is not within this category; and similarly if it appears that B is intended to take beneficially. But in other cases there is a rebuttable presumption that B holds on a resulting trust for A. The question is not one of the automatic consequences of a dispositive failure by A, but one of presumption: the property has been carried to B, and from the absence of consideration and any presumption of advancement B is presumed not only to hold the entire interest on trust, but also to hold the beneficial interest for A absolutely. The presumption thus establishes both that B is to take on trust and also what that trust is. Such resulting trusts may be called “presumed resulting trusts. (b) The second class of case is where the transfer to B is made on trusts which leave some or all of the beneficial interest undisposed of. Here B automatically holds on a resulting trust for A to the extent that the beneficial interest has not been carried to him or others. The resulting trust here does not depend on any intentions or presumptions, but is the automatic consequence of A’s failure to dispose of what is vested in him. Since ex hypothesi the transfer is on trust, the resulting trust does not establish the trust but merely carries back to A the beneficial interest that has not been disposed of. Such resulting trusts may be called “automatic resulting trusts. (5) Where trustees hold property in trust for A, and it is they who, at A’s direction, make the transfer to B, similar principles apply, even though on the face of the transaction the transferor appears to be the trustees and not A. If the transfer to B is on trust, B will hold any beneficial interest that has not been effectually disposed of on an automatic resulting trust for the true transferor, A. If the transfer to B is not on trust, there will be a rebuttable presumption that B holds on a resulting trust for A.”
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In re Manisty's Settlement [1974] Ch 17
1974
ChD
Templeman J
Trusts
The court contrasted the exercise by trustees of an intermediate power with the exercise of a wide special power. Held: A wide power, whether special or intermediate, does not negative or prohibit a sensible approach by trustees to the consideration and exercise of their powers. An intermediate power break the normal principles because, in relation to a power exercisable by the trustees at their absolute discretion, the only 'control' exercisable by the court is the removal of the trustees, and the only 'due administration' which can be 'directed' is an order requiring the trustees to consider the exercise of the power, and in particular a request from a person within the ambit of the power.
1 Citers


 
Leake (formerly Bruzzi) v Bruzzi [1974] 1 WLR 1528
1974
CA
Ormrod LJ
Trusts, Equity
The house was purchased in the husband's sole name with a declaration of trust in favour of the husband and wife, holding the property as joint tenants. The wife had left the matrimonial home, and the husband had paid all the mortgage instalments including interest. Held: The declaration of trust was overriding, and subject to adjustments for matters after severance, the property was to be held in equal shares. He was given credit for the capital payments but not for interest because he had had the sole use of the home and the interest payments could be regarded as "something equivalent to rent or payment for use and occupation.
Married Women's Property Act 1882 17
1 Citers


 
Thompson's Trustee in Bankruptcy v Heaton [1974] 1 WLR 605; [1974] 1 All ER 1239
1974
ChD
Sir John Pennycuick VC
Trusts
Sir John Pennycuick VC explained the rule in Keech v Sandford: "The fiduciary relation here [between partners] arises not from a trust of property but from the duty of good faith which each partner owes to the other. It is immaterial for this purpose in which partner the legal estate in the leasehold interest concerned is vested. What then is the position when a partnership is dissolved but there remains property of the former partnership which has not been realised? The general principle, I think, is correctly stated in Lindley on Partnership 13th ed. (1971) . . in the following terms: 'Upon the dissolution of a partnership, and in the absence of any Partnership Agreement to the contrary, it has been seen . . (4) That, for the purposes of winding up, the partnership is deemed to continue; the good faith and honourable conduct due from every partner to his co-partners during the continuance of the partnership being equally due so long as its affairs remain unsettled; and that which was partnership property before, continuing to be so for the purpose of dissolution, as the rights of the partners require.'
It necessarily follows, I think, that where the property of a dissolved partnership includes a leasehold interest, then subject to any other arrangement which may be made between the partners concerning that interest, each of the former partners owes the same obligation to the other former partner in respect of that interest as he did while the leasehold interest remained the partnership property and, accordingly, he is under the same limitations with regard to the purchase of the reversion as he would have been had the partnership still been subsisting."

 
Richards v Dove [1974] 1 All ER 888
1974
ChD

Family, Trusts

1 Citers



 
 Re Hastings-Bass; Hastings v Inland Revenue; CA 14-Mar-1974 - [1975] Ch 25; [1974] EWCA Civ 13; [1974] 2 All ER 193
 
White and others v Vandervell Trustees Ltd. (No. 2), Re Vandervell's Trusts (No 2) [1974] EWCA Civ 7; [1974] Ch 269; [1974] 1 All ER 47; [1974] 3 WLR 256
3 Jul 1974
CA
Lord Denning MR, Stephenson LJ, Lawton LJ
Taxes Management, Equity, Trusts
Lord Denning MR described the modern practice concerning pleadings: "It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated."
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[ Bailii ]
 
Time Products Ltd v Combined English Stores Unreported, 2 December 1974
2 Dec 1974

Oliver J
Land, Trusts
The plaintiff and the defendant were each interested in buying a property and had agreed that one of them would make an offer, the other refraining from doing so, and that if the offer were to be accepted the purchaser would deal with the property in a manner to the advantage of both. The arrangement was not sufficiently detailed as to constitute an enforceable contract and the offeror, having become the purchaser with the other refraining from competing, sought to keep the property for itself, excluding the other from any benefit. Held. The property was declared to be held on trust for the two parties in equal shares.
1 Citers



 
 in Re Kayford Ltd; ChD 1975 - [1975] 1 WLR 279; [1975] 1 All ER 604

 
 Blathwayt v Baron Cawley; HL 1975 - [1976] AC 397; [1975] 3 All ER 625
 
Cantor v Cox (1975) 239 EG 121
1975

Plowman V-C
Trusts, Equity
An unmarried couple had lived together, and now disputed its ownership. It had been purchased in the sole name of the woman. The executrix of the will of the woman claimed possession of the house, in which the man was still living. He counterclaimed for a declaration that he was beneficially entitled to it. Held: The presumption of advancement does not apply as between an unmarried couple living together as husband and wife, where the claimant cannot be heard or allowed to assert his claim to an equitable interest. "Here the legal estate was in the testatrix, and the defendant came to the court seeking equitable relief. The equitable presumption of a resulting trust which arose where the purchase-money was provided by someone other than the person taking the legal estate was always rebuttable by evidence of actual intention. The evidence in this case was perfectly plain. The defendant put the house into the name of the testatrix in order to be out of reach of his creditors."
1 Cites

1 Citers


 
In Re Irving (1975) 66 DLR (3d) 387)
1975


Commonwealth, Trusts
The (Canadian) court considered an application to vary a trust on behalf of a child, and asked itself: "Would a prudent adult, motivated by intelligent self-interest, and after sustained consideration of the proposed trusts and powers and the circumstances in which they may fall to be implemented, be likely to accept the proposal?"
1 Citers


 
Eves v Eves [1975] 1 WLR 1338; [1975] 3 All ER 768; [1975] EWCA Civ 3
28 Apr 1975
CA
Brightman J, Lord Denning MR, Browne J
Trusts
The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired in his name alone was because she was under 21 and that, but for her age, he would have had the house put into their joint names. He admitted in evidence that this was simply an 'excuse'. Held: A trust was established. There must be a sufficient link between the promises relied upon and the conduct which constitutes the detriment.
Lord Denning MR spoke as to Lord Diplock's speech on resulting or constructive trusts: "Lord Diplock brought it into the world and we have nourished it."
1 Cites

1 Citers

[ Bailii ]
 
Re Lipinski's Will Trusts [1976] Ch 235
1976
ChD
Oliver J
Wills and Probate, Trusts
Harry Lipinski bequeathed his residuary estate on trust as to half for the Hull Judeans (Maccabi) Association to be used solely to construct and improve the new buildings for the association. The executors sought a determination whether the bequest was valid. Held: Whether a gift was treated as a purpose trust or an absolute gift to a unincorporated non-charitable body with a superadded direction, the gift was valid if the beneficiaries were ascertainable; that the specified purpose of the gift to the Hull Judeans was within the power of that association and its members were the ascertained or ascertainable beneficiaries, and were therefore the persons who were entitled to enforce that purpose, or notwithstanding the use of "solely", to vary that purpose. The association was not a charity.
Oliver J: "If the gift were to the association simpliciter, it would, I think, clearly fall within the second category of Cross J.'s categories. At first sight, however, there appears to be a difficulty in arguing that the gift is to members of the association subject to their contractual rights inter se when there is a specific direction or limitation sought to be imposed upon those contractual rights as to the manner in which the subject matter of the gift is to be dealt with . . .
There would seem to me to be, as a matter of common sense, a clear distinction between the case where a purpose is prescribed which is clearly intended for the benefit of ascertained or ascertainable beneficiaries, particularly where those beneficiaries have the power to make the capital their own, and the case where no beneficiary at all is intended (for instance, a memorial to a favourite pet) or where the beneficiaries are unascertainable … If a valid gift may be made to an unincorporated body as a simple accretion to the funds which are the subject matter of the contract which the members have made inter se - and Neville Estates Ltd. v. Madden [1962] Ch. 832 and In re Recher's Will Trusts [1972] Ch. 526 show that it may - I do not really see why such a gift, which specifies a purpose which is within the powers of the association and of which the members of the association are the beneficiaries, should fail. Why are not the beneficiaries able to enforce the trust or, indeed, in the exercise of their contractual rights, to terminate the trust for their own benefit? Where the donee association is itself the beneficiary of the prescribed purpose, there seems to me to be the strongest argument in common sense for saying that the gift should be construed as an absolute one within the second category - the more so where, if the purpose is carried out, the members can by appropriate action vest the resulting property in themselves, for here the trustees and the beneficiaries are the same persons.
Directly in point is the more recent decision of Goff J. in Re Denley's Trust Deed [1969] 1 Ch. 373 …Goff J held that the rule against enforceability of non-charitable 'purpose or object' trusts was confined to those which were abstract or impersonal in nature where there was no beneficiary or cestui que trust. A trust which, though expressed as a purpose, was directly or indirectly for the benefit of an individual or individuals was valid provided that those individuals were ascertainable at any one time and the trust was not otherwise void for uncertainty . . . I respectfully adopt this, as it seems to me to accord both with authority and common sense." and "This is a case in which, under the constitution of the association, the members could, by the appropriate majority, alter their constitution so as to provide, if they wished, for the division of the association's assets among themselves. This has, I think, a significance." Finally: ". . . whether one treats the gift as a 'purpose' trust or as an absolute gift with a superadded direction … all roads lead to the same conclusion."
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1 Citers


 
Evans v London Co-operative Society Ltd Times, 06 July 1976
6 Jul 1976

Brightman J
Trusts
Rule 7 of the trust instrument of a pension fund provided for the pensions committee to make loans on certain terms to the Co-operative Society in question, and the pension fund had been receiving from the society less than the market rate of interest on such loans. Held: The terms of rule 7 permitted not only the self-investment of the pension funds but also the payment of less than the market rate of interest on such loans, even though the society was the trustee of the fund and so was profiting from its trust.
1 Citers


 
Paul v Constance [1976] EWCA Civ 2; [1977] 1 WLR 527
8 Jul 1976
CA
Scarman LJ
Trusts, Wills and Probate

1 Citers

[ Bailii ]
 
Fielding v Fielding [1977] 1 WLR 1146
1977
CA
Ormrod LJ
Family, Trusts
The wife, following divorce, applied for a lump sum order to be made against the husband but then she added a claim under s.17 of the Act of 1882 for a declaration that she had an interest, for which the husband should account to her, in the assets of two public houses which together they had managed. Held. The registrar and, on first appeal, the circuit judge had been wrong to concentrate – at great length – on the claim under the Act of 1882 referable to strict property rights. Ormrod LJ said that it was "of very little value to proceed under the [Act of] 1882 after divorce" and the 1973 Act "provides an elastic method of deciding what is a fair order".
Matrimonial Causes Act 1973 - Married Women's Property Act 1882 18
1 Citers


 
Re Hampden's Settlement Trusts [1977] TR 177
1977


Trusts
A settlement was made on the beneficiary's children relieving him of the "considerable obligation in respect of making provision for their future" which he would otherwise have owed. Held: This constituted a benefit for the settlor. The court accepted submissions as to whether a proposed transaction was on behalf of a beneficiary: i) that a power to apply capital for the benefit of somebody is the widest possible formulation of such power;
ii) that under such a power the trustees can deal with capital in any way which, viewed objectively, can fairly be regarded as being to the benefit of the object of the power, and subjectively they believe to be so;
iii) such benefit need not consist of a direct financial advantage to the person who is being benefited. It may be that he is benefited by benefiting a near relation or by relieving him of moral responsibilities.
The phrase 'viewed objectively meant: "the figures are such that it is quite possible to regard this provision for the children, although generous, as being for the benefit of [the beneficiary]. By way of reductio ad absurdum if [the beneficiary] had himself no resources whatever then I do not think it would be possible objectively to regard the making of a provision of half a million pounds or thereabouts for his children as realistically conferring a benefit upon him . . here he is himself . . very well provided for, and that makes all the difference. In every case the question must be one of degree, but there are no such difficulties in this case."

 
Pink v Lawrence (1977) 36 P & CR 98
1977
CA
Buckley LJ
Trusts
Buckley LJ (with whom the other members of the Court agreed) said that: "Where there is an express declaration of trust, the doctrine of constructive trusts cannot be referred to contradict the expressly declared trust. The doctrine of constructive trusts is one which applies in circumstances in which there is no declared trust."
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In re Locker's Settlement Meachem v Sachs [1977] 1 WLR 1323
1977

Goulding J
Trusts
The court considered how the trustees of a pension scheme could appropriate different parts of the funds as between long standing and new classes of members. Held: Objects (that is, those who had only recently qualified as beneficiaries) could not benefit from what he called stale income (that is, income which ought to have been distributed at an earlier date).
1 Citers


 
Conin; Re [1977] 2 All ER 720; [1979] Ch 16
1977

Walton J
Wills and Probate, Trusts
Walton J expressed serious doubts about the extension of the rule in Strong v Bird to an administrator. The appointment of a donee by a donor to be his executor is a personal act of choice by the donor. The effect of such act is to make it impossible for a donee, as executor, to sue himself. And that is consistent with the intention on the part of the donor to make a gift to the donee. The appointment of an administrator, on the other hand, is not the act or choice of the donor but of the law. And often it is a matter of pure chance which of the many persons who are entitled to a grant of letters of administration will be appointed as the administrator. I

 
Re Tuck's Settlement Trusts [1977] EWCA Civ 11; [1978] Ch 49; [1978] 1 All ER 1047; [1978] 2 WLR 411
1 Nov 1977
CA
Lord Denning MR Lord Russell of Killowen, Eveleigh LJ
Wills and Probate, Trusts
By his will, Sir Adolph Tuck sought to ensure that his successors should be Jewish, and stated that the arbitrators of this must be the Chief Rabbi of his community.
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[ Bailii ]
 
English v Dedham Vale Properties Ltd [1978] 1 WLR 93; [1978] 1 All ER 382
1978
ChD
Slade J
Trusts, Agency
A prospective purchaser of a property had applied for planning permission in the name of the vendor without telling the vendor what it was doing. Held: The purchaser could fairly and accurately be described, as Slade J described the purchaser, as a 'self-appointed agent' for the vendor. As such the purchaser did owe fiduciary obligations to the vendor, and was liable to account for any profit made as a result of the self-appointed agency.
The categories of fiduciary relationships are not closed
1 Citers


 
Osoba v Osoba and others [1979] 1 WLR 247; [1979] 2 All ER 393; [1978] EWCA Civ 3
31 Oct 1978
CA
Buckley, Goff, Eveleigh LJJ
Wills and Probate, Trusts
Appeal by the plaintiff from an order declaring upon the true construction of the will of Patrick Jacob Osoba deceased, and in the events which have happened, that the residue of the estate of the testator, situate in England, is held upon trust for the persons other than the testator's mother, named in clause 3 of the said will in equal shares absolutely. Held: there is a general rule that when one sees a gift of income without any gift over to a particular named person for a particular purpose, that ordinarily the purpose is a mere indication of motive and does not cut down the out and out gift.
[ Bailii ]
 
Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch 250; [1978] 3 WLR 712; [1979] 1 All ER 118
1979
CA
Buckley LJ
Trusts, Company
The company directors operated an elaborate scheme to extract value from Belmont by causing it to buy the shares of a company called Maximum at a considerable overvalue. This was a breach of the fiduciary duties of the directors. They sought to recycle the profit on the sale of Maximum so that it could be used to fund the purchase by three companies associated with the directors of Belmont's own shares. This was not only a breach of the directors' fiduciary duty but a criminal contravention of section 54 of the 1948 Act. Belmont went into liquidation, and an action was brought in its name by receivers for damages for breach of duty against the directors who had authorised the transaction, and for an account on the footing of knowing receipt against the three companies. Held: An employee's knowledge is not to be treated as the employer's knowledge: "But in my view such knowledge should not be imputed to the company, for the essence of the arrangement was to deprive the company improperly of a large part of its assets. As I have said, the company was a victim of the conspiracy. I think it would be irrational to treat the directors, who were allegedly parties to the conspiracy, notionally as having transmitted this knowledge to the company; and indeed it is a well recognized exception from the general rule that a principal is affected by notice received by his agent that, if the agent is acting in fraud of his principal and the matter of which he has notice is relevant to the fraud, that knowledge is not to be imputed to the principal. So in my opinion the plaintiff company should not be regarded as party to the conspiracy on the ground of lack of necessary guilty knowledge."
Companies Act 1948 54
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In re Bucks Constabulary Widows and Orphans Fund Friendly Society (No 2) [1979] 1 WLR 936
1979


Company, Trusts
In the absence of any contractual obligation otherwise, the funds of a mutual society must be distributed equally on a dissolution.
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 Dorothy Roulstone v O L Panton (Administrator of the Estate of Olive Hinds); PC 27-Jul-1979 - [1979] UKPC 36; [1979] 1 WLR 1465
 
Sharpe Re, Ex parte Trustee of the Bankrupt v Sharpe [1980] 1 WLR 219; (1980) 39 P & CR 459; [1980] 1 All ER 190
30 Jul 1979
ChD
Browne-Wilkinson J
Insolvency, Land, Trusts
A couple lived in a maisonette with their aunt. The property had been purchased in the name of the husband but the aunt had contributed a partial sum towards the purchase price, while the rest of the amount was raised by way of a mortgage. The couple subsequently went bankrupt and the aunt claimed to be entitled to a proprietary interest in the maisonette by means of a resulting trust presumed from her contribution to the purchase price. Held: The money had in fact been advanced by way of a loan with the intention that it be repaid. She was, therefore, not entitled to any share of the equitable interest of the property. Monies advanced by way of loan are not, on this basis alone to be treated as contributions to the purchase price of property so that the lender acquires a beneficial interest in that property as a result.
A constructive trust will be treated as coming into existence at the time of the conduct which gives rise to the trust.
Browne-Wilkinson J said: "I will first consider whether she has established an equitable interest in the property and its proceeds of sale by virtue of having provided the bulk of the purchase money, that is to say, has she an interest under a resulting trust? I have no doubt that she has not established any such interest. It is clear that the parties never worked out in any detail what was the legal relationship between them, but no one has suggested that Mrs. Johnson advanced the money to the debtor otherwise than by way of gift or loan. In his public examination, the debtor suggested that the monies were a gift, but I find as a fact that the monies were advanced by way of loan."
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