Bath and Wells Diocesan Board of Finance and Another v Jenkinson and Others: ChD 6 Sep 2000

Where there was a gift of land on charitable trusts, but where the gift was first expressed to be unlimited in time, but later in the deed provided powers for revocation, and conditions for defeasance, it must remain a matter of construction of the particular deed to decide whether the gift was in perpetuity. In the current cases the reversionary provisions were void for remoteness, and the trustees had acquire a possessory title for charity on the trusts of the original deeds.

Citations:

Times 06-Sep-2000, Gazette 05-Oct-2000

Land, Charity, Trusts

Updated: 18 May 2022; Ref: scu.78288

Carruthers v Carruthers’ Trustees: HL 13 Jul 1896

Where there has been culpa lata on the part of trustees and loss to the trust-estate which it might reasonably be concluded would not have been incurred apart from the trustees’ failure in duty, the onus lies upon them to show that the loss would equally have been incurred if they had performed their duty.
A truster conveyed his whole estate to trustees, who entered on office in 1879. They were empowered to appoint one of their own number or other person as factor for the trust-estate, and were directed to require the factor to lay before them within one month after 31st December in each year an account of his intromissions, ‘with the whole vouchers thereof, to be by them examined, audited, and (if found to be correct) approved of.’ In virtue of this provision the trustees allowed one of their number to act as factor with remuneration. For two years the
accounts were annually delivered to the trustees and audited. No further account was delivered till 1888 for the period between 15th May 1882 and 29th February 1888. A fourth account was delivered on 1st June 1890, which was admitted to he correct, and which showed, as at 1st June 1890, a balance in favour of the factor of pounds 61 odds. No further accounts were delivered to the trustees. During the remainder of 1890 sums of money were received by the factor, which, after allowing for the balance due to him, left in his hands a sum of pounds 104, 2s. 7d. due to the trust-estate. There was at the same time interest due by the trust on certain heritable bonds affecting the lands belonging to the trust-estate which was not paid by the factor. In 1891 further sums were received by the factor on account of the trust-estate, and at the end of 1891 he absconded leaving the whole of these sums unaccounted for.
In an action at the instance of a beneficiary under the trust, held ( reversing the judgment of the Second Division) that the trustees had been guilty of culpa lata in failing to require the delivery of the accounts annually for audit in accordance with the truster’s express direction, and that they were liable to make good to the trust-estate the sum of pounds 104, 2s. 7d. which would presumably have been applied in payment of the interests due had the factor been required to deliver his accounts for audit at the end of year 1890, but not for the further sums misappropriated by him in 1891 prior to the period for delivery of the annual accounts for that year.

Judges:

Lords Herschell, Watson, Macnaghten, Morris, Shand, and Davey

Citations:

[1896] UKHL 809, 33 SLR 809

Links:

Bailii

Jurisdiction:

England and Wales

Trusts

Updated: 18 May 2022; Ref: scu.634019

Nestle v National Westminster Bank: ChD 1988

The plaintiff was the remainder beneficiary under the will trust of her grandfather, who died in 1922. The trust fund was then worth about andpound;50,000. The last outstanding life interest under the trust was that of her father John, who died in 1986. Thereafter she was absolutely entitled to the trust fund, by that time worth some andpound;269, 203. The plaintiff complained that, after adjusting the 1922 value for changes in the retail prices index to date, it should have been worth about andpound;1 million. She further said that, if adjusted for increases in the ordinary shares index on the stock market, that part of the fund which her grandfather had invested in ordinary shares would have been worth over andpound;1.8 million. She attributed the fact that it was not worth so much to breach of trust on the part of the bank trustee in both misinterpreting the trust investment clause and investing badly.
Held: Hoffmann J said: ‘There was a claim by Miss Nestle for income accounts for the funds since their inception. For the period during which any income might have accrued to capital, namely until John Nestle turned 25 in 1938, those accounts were delivered a long time ago. In respect of the period since that date she has as a capital beneficiary no interest in the disposal of the income and is not in my judgment entitled to accounts.’

Judges:

Hoffmann J

Citations:

[2000] WTLR 795, (1988) 10 Tru LI 112

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 May 2022; Ref: scu.567851

Re Cowin: 1886

Citations:

(1886) 33 ChD 179

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 May 2022; Ref: scu.567854

In re Tillott: ChD 1892

The plaintiff was entitled under a will trust to a one twelfth share in the capital of the residue, contingently on the death of his mother, who was a life tenant. The residue included Bank of England Consols. He had already obtained from the court an order that the defendant will trustee write to the Bank of England authorising it to inform the plaintiff of the amount of such Consols and to produce all the documents relating to property in which the plaintiff was interested. He now sought an order that the defendant trustee authorise the Bank to inform him of any incumbrances on that property, such as charging orders or stop notices. The trustee objected, on the grounds that the plaintiff might thereby obtain information as to the dealings of other contingently entitled remaindermen with their own shares.
Held: The plaintiff was entitled to have the further information sought, so that he would know whether the fund in which he was interested was incumbered or not.
Speaking of the trustee’s argument, Chitty J said: ‘this may give the Plaintiff more information than he is entitled to ask, because as there are twelve shares in this fund, it may be that there are several distringases of the fund obtained by persons who have charges on the continent interest of the other persons, and it is clear that the trustee is not bound to give the cestui que trust of one share any information as to the dealings of the other cestui que trust in whose share he has no interest, shewing whether those shares are or are not incumbranced.’

Judges:

Chitty J

Citations:

[1892] 1 Ch 86

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 May 2022; Ref: scu.567852

Brittlebank v Goodwin: 1868

A trustee is bound to inform a beneficiary, who, on attaining majority is entitled to share in a trust fund, of that interest

Citations:

(1868) LR 5 Eq 545

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 May 2022; Ref: scu.567856

In re Dartnall: CA 1895

Citations:

[1895] 1 Ch 474

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 May 2022; Ref: scu.567853

In Re Skinner: ChD 1904

A beneficiary of a will trust brought an action for an account, having had little or no accounting from the executors and trustees (one a professional solicitor, entitled to charge) since the testator died more than two years before the action was commenced. The court made a full administration order, and the question whether the executor trustees should pay the costs was reserved.
Held: After further argument, Farwell J held that the plaintiff was entitled to her costs. He said: ‘The gist of the complaints against the defendants . . is that they would not, and did not, render any proper accounts, though repeatedly requested to do so by the plaintiff and by . . their co-executor. Now it is clear that in the case of a small estate like this it is very hard that the plaintiff should be obliged to have recourse to proceedings of this nature in order to get an account. I am always unwilling to make trustees pay costs; but, on the other hand, beneficiaries have a right to expect the performance of their duty by executors, and not the less when one of them has power to make professional charges. In my opinion the conduct of these two defendants amounts to a gross neglect to account. ‘

Judges:

Farwell J

Citations:

[1904] 1 Ch 289

Citing:

AppliedHeugh v Scard CA 1875
Sir George Jessel MR said: ‘In certain cases of mere neglect or refusal to furnish accounts, when the neglect is very gross or the refusal wholly indefensible, I reserve to myself the right of making the executor or trustee pay the costs of . .

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
CitedBlades v Isaac and Another ChD 21-Mar-2016
Claim by beneficiary under discretionary trust.
Held: A trustee’s wrongful failure to provide information does not necessarily justify an adverse costs order. . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 May 2022; Ref: scu.567857

Re Boyer’s Settled Estates: 1916

A right to reside shared by two persons was recognized as a valid and effective right. Sargant J said: ‘I think that the effect of s58 is, broadly speaking, to give to the large class of persons comprised in the nine headings of subs(1) of s58 the powers of a tenant for life, although they are not strictly tenants for life by reason of their estates not being strictly estates for life. But, apart from that, I think that the persons who are dealt with under s58 are persons who fall within the general defining provisions of s2(5), under which in determining tenancy you have to regard beneficial title to possession’.

Judges:

Sargant J

Citations:

[1916] 2 Ch 404

Statutes:

Settled Land Act 1882 2(5) 58

Cited by:

CitedBinions v Evans CA 27-Jan-1972
The plaintiffs had bought a cottage subjecty to a tenancy to the defendant. They sought possession saying that she held under a tenancy at will. It was a renancy for her life but described as a tenancy at will. The judge had held that the other . .
Lists of cited by and citing cases may be incomplete.

Trusts, Landlord and Tenant

Updated: 18 May 2022; Ref: scu.450173

Whitmarsh v Robertson: 25 Jan 1845

By a marriage settlement certain stock in the funds was settled upon the intended husband and wife for their joint lives and the life of the survivor, and then upon the children of the marriage, with a power to the trustees, with the consent of the wife, to advance part of the fund for the benefit of the children in her lifetime. were four children of the marriage. The husband died. The wife married again. The second husband assigned the wife’s life interest for value. After the assignment the trustees, with the consent of the wife, exercised the power of advancement in favour of the children of the first marriage. Held, that the power was well executed as against the assignee of the second husband.

Citations:

[1845] EngR 416, (1845) 1 Coll 570, (1845) 63 ER 548

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 18 May 2022; Ref: scu.303558

Kelson v Kelson: 13 Jan 1853

The statement in a deed of settlement, executed after marriage, was that it was made in consideration of 5s., and divers other good and valuable considerations. Held, that this statement did not, as against strangers to the settlement, amount to evidence that it was not voluntary; and a Defendant claiming against it as a purchaser for valuable consideration, and insisting at the Bar that the settlement was fraudulent and void under the stat. 27 Eliz. c. 4, the Court directed an inquiry whether the settlement was founded on any and what valuable Consideration.

Citations:

[1853] EngR 74 (B), (1853) 10 Hare 385

Links:

Commonlii

Family, Trusts

Updated: 18 May 2022; Ref: scu.294060

Burrows v Walls: 10 Mar 1855

A testator, by his will, gave the residue of his property to three trustees, whom he appointed executors, upon trust to sell and invest the same and to pay the income thereof to his widow for life, and after her decease, to his children, who were still infants at the time of his death. The eldest child attained twenty one in the year 1839, and the youngest in 1846. The three executors proved the will, but one of them almost exclusively acted. The money which was the proceeds of the estate was suffered by two of the executors to remain in the hands of the third, who ultimately became insolvent. On the youngest child attaining twenty one on behalf of himself and his brothers and sisters, attempted to obtain payment from the acting executor, and in 1848 wrote to him a letter consenting to receive payment of the amount then admitted to be due by annual instalments. In 1849, and shortly before the insolvency of the acting trustee, a bill was filed by all the children against the three trustees for the purpose of making them each responsible. Held, that inasmuch as it was the duty of the three trustees to have explained to their cestuis que trust what their rights were, and as they had not done so, there was nothing in the conduct of the children to deprive them of their remedy against the three trustees, who were accordingly declarecl to be, jointly arid severally liable to make good the deficiency,

Citations:

[1855] EngR 294, (1855) 5 De G M and G 233, (1855) 43 ER 859

Links:

Commonlii

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 18 May 2022; Ref: scu.292216

Chamberlain v Hutchinson: 9 Jul 1856

A lady had a general power of appointing a trust fund by deed or will, and in default, half was limited to A. arid the other to B. By her will, she appointed the fund to her executor arid made it chargeable with her debts and some legacies, and she gave half the residue, composed of the appointed fund and her own property, to A. Held, that the moiety of the fund subject to the power thus appointed in favour of A. passed to the appointor’s next of kin, as part of her estate undisposed of, and not to the executors of A. as in default of appointment.

Citations:

[1856] EngR 762, (1856) 22 Beav 444, (1856) 52 ER 1179

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 18 May 2022; Ref: scu.291517

Kelson v Kelson: 11 Feb 1853

A question in the cause was whether a settlement was voluntary, which was expressed to be made for ‘divers good and valuable considerations.’ No evidence had been given on the question of consideration ; and the Court was of opinion that the parties ought to have an opportunity of shewing whether there was or was not a valuable consideration for the deed ; and the case was adjourned to Chambers for that purpose.

Citations:

[1853] EngR 240, (1853) 9 Hare App 86, (1853) 68 ER 807

Links:

Commonlii

Family, Trusts

Updated: 18 May 2022; Ref: scu.294226

Greenwood v Percy: 10 Mar 1859

A testator devised freeholds to two and their heirs as tenants in common, and in case either should die without lawful issue surviviog her, then he devised her part ‘ unto the survivor.’ Held, that ‘survivor’ was to he read in its ordinary sense, and not
in the sense of ‘other.’
A partition decreed without a commission, in a case in which infarns were interested, upon satisfactory evidence of the value.

Citations:

[1859] EngR 402, (1859) 26 Beav 572, (1859) 53 ER 1019

Links:

Commonlii

Trusts

Updated: 18 May 2022; Ref: scu.287754

Pryor v Pryor: CA 29 Apr 1864

Parents having a power of appointing an estate to all or any of their children appointed it absolutely to two of their sons, upon the understanding that the appointments should resettle the estate upon certain trusts for the benefit of all the children then living during their respective lives, and subject thereto for the benefit of the children of the sons. This resettlement was made by a contemporaneous deed. Held, that the transaction could not be supported by analogy to the common case of an appointment to a daughter in contemplation of her marriage, accompanied by a contemporaneous settlement of the appointed fund, but that the appointment was void in equity, as made upon a bargain for the benefit of persons not objects of the power,

Judges:

Knight Bruce LJ

Citations:

[1864] EngR 412, (1864) 3 De G J and S 205, (1864) 46 ER 353

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedEclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 18 May 2022; Ref: scu.282126

Gee v Liddell: 4 Jun 1866

The meaning of the word ‘survive’ in a limitation of property, is that the person to survive shall be living at the time of the event which he is to survive; it does not mean living at any time whatever after the event referred to. Consequently, a gift over, if there should be no child or remoter issue of AB who should survive the testator and AB, and should live to attain twenty-one, is not void for remoteness.

Citations:

[1866] EngR 161, (1866) 35 Beav 658, (1866) 55 ER 1053

Links:

Commonlii

Trusts

Updated: 18 May 2022; Ref: scu.280872

Mussumat Thukrain Sookraj Koowar v Government, Baboo Ajeet Sing, And Others: PC 3 Jul 1871

In Oude, before its annexation to the British rule, a Rajah was a TaIookdar of a large Talook. A younger branch of his family had a separate Mehal in the possession of A., wholly distinct from and independent of the Talook the Rajah possessed as representing the elder branch of the family. The Oude Government, for fiscal purposes, included A’s Mehal with the Rajah’s Talook so that the Rajah as the elder branch of the family represented A.’s Mehal at the Court at Lucknow, notwithstanding that A. remained in undisturbed possession as absolute Owner, paying through the Rajah for his Mehal a proportion of the jumma fixed on the Talook. This relation between the Rajah and A. subsisted up to the time of the annexation of Oude by the British Government. While the Government was making a settlement with the Landowners, and A. was about to apply for a distinct settlement of his Mehal, he, and after him his Widow was, induced by the Rajah not to do so, the Rajah in Letters fully recognizing As absolute right to the Mehal. After the suppression of the rebellion in Oude, and the Government had recognized the Talookdary tenure with its rights, a provisional settlement of the Talook including A.’s Mehal, was made with the Rajah ; but before a Sunnud was granted to him, Government confiscated half his estate for concealment of Arms. The Rajah suppressed the fact of the trust relation of the Mehal of A., and contrived that it should be included in the half part of the estate the Government had confiscated ; which Mehal the Government as a reward granted to Oude loyalists. A.’s Widow brought a suit against the Government and the Grantees for the restoration of the Mehal and a settlement, The Financial Commissioner held that as the Rajah was the registered Owner of the Mehal of A., included in his Talook, it had been properly forfeited. Such finding reversed on appeal, on the ground that A. was the acknowledged cestui que trust of the Rajah, and that A.’s Widow, as equitable Owner was not affected as between her and the Government by the act of confiscation of half the Rajah’s Talook.

Citations:

[1871] EngR 27, (1871) 14 Moo Ind App 112, (1871) 20 ER 728

Links:

Commonlii

Trusts, Commonwealth

Updated: 18 May 2022; Ref: scu.280208

Rochdale Canal Company v King: 1853

Sir John Romilly MR said: ‘The principle on which the Defendants rely is one often recognised by this Court, namely, that if one man stand by and encourage another, though but passively, to lay out money, under an erroneous opinion of title, or under the obvious expectation that no obstacle will afterwards be interposed in the way of his enjoyment, the Court will not permit any subsequent interference with it, by him who formally promoted and encouraged those acts of which he now either complains or seeks to take advantage. This is the rule laid down in Dann v Spurrier (7 Ves 231), Powell v Thomas (6 Hare 300), and many other cases, to which it is unnecessary to refer, because the principle is clear.’

Judges:

Sir John Romilly MR

Citations:

(1853) 16 Beav 630

Citing:

CitedDann v Spurrier 1802
The tenant had carried out improvements to the property. It was uncertain whether the length of the term (7, 14 or 21 years) was at the option of the lessee alone.
Held: The case was decided on construction of the lease. Lord Eldon made it . .

Cited by:

CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 18 May 2022; Ref: scu.276430

Re Smith: 1880

Once an estate has been administered, the personal representative becomes a trustee; and at that stage the court’s inherent jurisdiction to control trusts arises allowing if necessary an order for his removal.

Citations:

(1880) 42 Ch D 302

Cited by:

CitedThe Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 18 May 2022; Ref: scu.267735

Alsop Wilkinson v Neary and Others: ChD 4 Nov 1994

The second defendant, a solicitor, had fraudulently taken money from trusts, and paid money into trusts for his own family. It was claimed that the payments were intended to defeat the recovery of the funds. The trustees sought protection on costs through a Beddoe application.
Held: Trustees who sought directions from the court on whether to defend an action, should ask that question in separate proceedings begun for that purpose. By applying within the proceedings, they exposed the strengths and weaknesses of the trustees’ case: ‘it would be quite inappropriate for all this to be revealed to the court which has to try the case or the other parties to the litigation.’ Nor did the application bring the necessary parties before the court. A trustee has a duty to remain neutral when the trust faces hostile litigation regarding the validity of trust itself.

Judges:

Lightman J

Citations:

Independent 03-Nov-1994, Times 04-Nov-1994, [1995] 1 All ER 431

Statutes:

Insolvency Act 1986 423

Citing:

CitedFearns v Young 1804
A trustees’ duty may extend to taking or defending proceedings to protect the assets of the trust. . .
CitedIn re Beddoe, Downes v Cottam CA 1893
In case of doubt as to the desirability of the intended proceedings (whether as plaintiff or defendant), trustees may apply to the court for directions. This will protect the trustees from adverse costs orders. If given leave to sue or defend by the . .
CitedJenour v Jenour 1804
A trustee taking legal action properly to defend the assets of the trust can expect to be indemnified from those assets. . .
CitedRe Biddencare Ltd ChD 1994
The court set out the principles applicable on making a Beddoe application. The court should consider the strength of the case, the likely costs order in the eventual proceedings, and the justice of the application itself. . .
DoubtedIdeal Bedding Company Ltd v Holland 1907
The plaintiffs had obtained against the trustees an order that the settlement was void as against the plaintiffs and other creditors. The court considered the trustees’ position on costs.
Held: A trustee has a duty to defend the trust, and . .
CitedMcDonald and Others v Horn and Others CA 8-Aug-1994
A court may make a pre-emptive award of costs to pension fund members who wished to sue the trustees. Hoffmann LJ said: ‘if one looks at the economic relationships involved, there does seem to me to be a compelling analogy between a minority . .
CitedNational Anti-Vivisection Society Ltd v Duddington 23-Nov-1998
The trustee of the Society had actively defended a trust action but failed. He sought an indemnity for his costs.
Held: He was not entitled to an indemnity for costs out of the trust assets. His acts had preferred one group of beneficiaries . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 17 May 2022; Ref: scu.77770

Re Lead Co.’s Workmen’s Fund Society: 1904

Citations:

[1904] 2 Ch 196

Cited by:

CitedHunt and Another v McLaren and others ChD 4-Oct-2006
Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 17 May 2022; Ref: scu.245261

Re Ball’s Settlement Trusts: ChD 1968

The curt was asked whether a resettlement of part of a trust fund on a new trust could be a variation which the court could approve under the 1958 Act.
Held: A variation under the Act must not be such as to change the fundamentals of the trust.
Megarry J said: ‘If an arrangement changes the whole substratum of the trust, then it may well be that it cannot be regarded merely as varying that trust. But, if an arrangement, while leaving the substratum, effectuates the purpose of the original trusts by other means, it may still be possible to regard that arrangement as merely varying the original trusts, even though the means employed are wholly different and even though the form is completely changed.’

Judges:

Megarry J

Citations:

[1968] 1 WLR 899

Statutes:

ariation of Trusts Act 1958

Jurisdiction:

England and Wales

Cited by:

CitedGoulding and Goulding v James and Daniel CA 10-Dec-1996
The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court’s approval was necessary. The judge had refused to approve the . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 17 May 2022; Ref: scu.241671

Cowcher v Cowcher: 1972

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.

Judges:

Bagnall J

Citations:

[1972] 1 WLR 425

Jurisdiction:

England and Wales

Cited by:

CitedCrossley v Crossley CA 21-Dec-2005
The claimant appealed an order that a house was to be held in equal shares with her son. The house was registered in their joint names, but the transfer contained no declaration of the interests. The house had been originally bought by the mother . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 17 May 2022; Ref: scu.237545

Baden v Societe Generale pour Favoriser le Developpement du Commerce et de l’Industrie en France SA (Note): 1993

The court looked to various forms of knowledge which could be attributed to a party when considering a rectification. Knowledge may be proved affirmatively or inferred from circumstances. The various mental states which may be involved are (i) actual knowledge; (ii) wilfully shutting one’s eyes to the obvious; (iii) wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make; (iv) knowledge of circumstances which would indicate the facts to an honest and reasonable man; (v) knowledge of circumstances which would put an honest and reasonable man on inquiry. A person in categories (ii) or (iii) will be taken to have actual knowledge, while a person in categories (iv) or (v) has constructive notice only. Peter Gibson J: ‘Again, however, I do not think it need be knowledge of the whole design: that would be an impossibly high requirement in most cases. What is crucial is that the alleged constructive trustee should know that a design having the character of being fraudulent and dishonest was being perpetrated. Further he must know that his act assisted in the implementation of such design.’

Judges:

Peter Gibson J

Citations:

[1993] 1 WLR 509

Jurisdiction:

England and Wales

Cited by:

CitedGeorge Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 16 May 2022; Ref: scu.222561

Barclay v Barclay: CA 1970

The question arose prior to sale between the sole trustee and an occupying beneficial tenant in common as to whether the property should be sold.
Held: The trustee of land was entitled to sell the property and divide the proceeds as the prime object of the trust was that the house should be sold, notwithstanding the fact that one of the beneficiaries had subsequently moved into the house.

Citations:

[1970] 2 QB 677

Jurisdiction:

England and Wales

Cited by:

CitedWilkinson v Chief Adjudication Officer CA 24-Mar-2000
The claimant owned a half share in a property. It was said that this brought her disposable capital above the limit to make a claim. She had inherited it, but had transferred it to her brother in satisfaction of her mother’s wishes. . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 16 May 2022; Ref: scu.207072

In re Buchanan – Wollaston’s Covenant: 1939

When considering the need to order the sale of property against the wishes of a joint owner, ‘the Court has a complete discretion to do what is right and proper, and will not allow the voice of the man who is in breach of his obligation to persist’

Citations:

[1939] Ch 738

Jurisdiction:

England and Wales

Cited by:

CitedWilkinson v Chief Adjudication Officer CA 24-Mar-2000
The claimant owned a half share in a property. It was said that this brought her disposable capital above the limit to make a claim. She had inherited it, but had transferred it to her brother in satisfaction of her mother’s wishes. . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 16 May 2022; Ref: scu.207073

Turton v Turton: CA 1988

When ascertaining the beneficial interests in a family home purchased by an unmarried couple, those interests had to be ascertained from consideration of the intentions of the parties at the time of the purchase; they were not to be left for determination in the light of subsequent events. Referring to Walker v Hall, Nourse LJ: ‘It is thus made clear that Dillon and Lawton LJJ were of the opinion that a beneficial interest acquired under an application of the principles stated in Gissing v Gissing can only be an absolute and indefeasible interest. It cannot be one which is liable to determine or to be defeated or diminished – either automatically or by the exercise of some discretion – on the happening of some future event, for example the separation of an unmarried couple who were living together at the time of its acquisition. The validity of that proposition is in my judgment beyond doubt. It must always be remembered that the basis on which the court proceeds is a common intention, usually to be inferred from the conduct of the parties, that the claimant is to have a beneficial interest in the house. In the common case where the intention can be inferred only from the respective contributions, either initial or under a mortgage, to the cost of its acquisition it is held that the house belongs to the parties beneficially in proportions corresponding to those contributions. . . .’ Lord Justice Kerr: ‘. . . once the court had found the existence of a constructive or implied trust whereby the beneficial rights to the property belonged to the parties in whatever shares the court determined, then the necessary consequence was the recognition by the court of rights which are proprietary in their nature and which lie wholly outside the exercise of any discretionary powers. That was made clear, inter alia, in Gissing v Gissing [1971] AC 886.’

Judges:

Lord Justice Nourse

Citations:

[1988] Ch 542

Jurisdiction:

England and Wales

Citing:

CitedWalker v Hall CA 1984
The court considered the way of distributing property purchased by an unmarried couple: ‘When such a relationship comes to an end, just as with many divorced couples, there are likely to be disputes about the distribution of shared property. How are . .
CitedGissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .

Cited by:

CitedOxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 16 May 2022; Ref: scu.199946

In re Locker’s Settlement Meachem v Sachs: 1977

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).

Judges:

Goulding J

Citations:

[1977] 1 WLR 1323

Cited by:

CitedBank of New Zealand v Board of Management of the Bank of New Zealand Officers’ Provident Association PC 14-Jul-2003
PC (New Zealand) The defendant operated a superannuation scheme for and on behalf of the officers of the bank it regulated. The trustees ought to amend the scheme, but it had been set up by statute.
Held: . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 16 May 2022; Ref: scu.195609

Pullen v Palmer: 1696

The essential difference between tenants in common and joint tenants is that while tenants in common may hold their lands either by several titles or by several rights, joint tenants hold them by one title and by one right. There is no difference as to the possession and manner of taking profits.

Citations:

(1696) 3 Salk 207

Jurisdiction:

England and Wales

Land, Trusts

Updated: 16 May 2022; Ref: scu.190119

Campbell v Gillespie: ChD 1900

Certain businesses and property were held on trusts for the benefit of the Claimant’s creditors, with the Defendant the trustee. The estate was re-conveyed to the Plaintiff and the re-conveyance contained a recital that the Plaintiff’s debts had been paid. At that stage a detailed account was not required and not long afterwards the trustee destroyed all the books of account. The Plaintiff then alleged that the trustee had acted fraudulently and brought a claim for fraud and an account on the basis of wilful default. Those elements of the claim were not pursued and the Plaintiff now sought only an order for a common account.
Held: A court had a discretion under Order 55 rule 10, to decline to make an order for an account and although Cozens-Hardy J felt ‘unable to acquit the defendant of some misconduct’ declined to make an order to direct a common account from 1887 – 1896 as to do so ‘ . . would be to enable the plaintiff to blackmail the defendant.’

Judges:

Cozens-Hardy J

Citations:

[1900] 1 Ch 225

Jurisdiction:

England and Wales

Cited by:

CitedHenchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 16 May 2022; Ref: scu.608335

Attorney General v Cocke: ChD 1988

Judges:

Harman J

Citations:

[1988] 1 Ch 414

Statutes:

Limitation Act 1980 21(3)

Jurisdiction:

England and Wales

Cited by:

CitedHenchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .
Lists of cited by and citing cases may be incomplete.

Limitation, Trusts

Updated: 16 May 2022; Ref: scu.608336

Re Ames’ Settlement; Dinwiddy v Ames: 1946

The intended husband’s father in 1908 settled a sum payable within one year after the marriage on standard marriage settlement trusts. The marriage took pace, but was several years lter annulled. On the wife’s petition. After the settlor’s later death, the husband continued to receive the sums under the settlement. Held; The marriage having been annulled, there had been a total failure of consideration, the trusts were void ab intio, and all the sums were held un trust for the settlor’s executors.

Citations:

[1946] 1 All ER 689, [1946] Ch 217, 115 LJ Ch 344, 175 LT 222, 62 TLR 300, 90 Sol Jo 188

Trusts, Family

Updated: 16 May 2022; Ref: scu.556255

Libertarian Investments Ltd v Hall: 6 Nov 2013

(Hong Kong) A trustee owes a duty to hold trust funds and apply them for the purposes of the trust (a stewardship or custodial duty). He is bound to answer for his stewardship when called on by the beneficiary to do so. If for any reason he misapplies the trust fund, or part of it, he must immediately reconstitute the trust fund in full. If he fails to do so, the court will order him to reconstitute the fund in specie, if that is possible, or pay the equivalent sum in money so as to produce the same result in financial terms.
Millett NPJ said that the relevant principle, in a case of unauthorised dissipation of trust funds is that: ‘Where the defendant is ordered to make good the deficit by the payment of money, the award is sometimes described as the payment of equitable compensation; but it is not compensation for loss but restitutionary or restorative. The amount of the award is measured by the objective value of the property lost determined at the date when the account is taken and with the full benefit of hindsight.’
Ribeiro PJ carried out a valuable review of the authorities concerned with equitable compensation in the context of a commercial relationship. He noted that where a relationship was fiduciary, there might be obligations which were not fiduciary in nature; and, equally, even in a commercial relationship, there might be aspects which engaged fiduciary obligations.
‘Once the trust or fiduciary relationship is established or conceded the beneficiary or principal is entitled to an account as of right. Although like all equitable remedies an order for an account is discretionary, in making the order the court is not granting a remedy for wrong but enforcing performance of an obligation.’

Judges:

Millett NPJ, Ribeiro PJ

Citations:

[2014] 1 HKC 368, [2013] HKCFA 93

Links:

Hklii

Jurisdiction:

England and Wales

Cited by:

CitedAIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
CitedHenchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Updated: 16 May 2022; Ref: scu.553779

Ashe v Mumford: CA 2001

The court considered the relative interests arising in the trust of a house bought under the right to buy scheme.
Held: The court upheld the trial judge’s decision that the discount should not be apportioned between the parties, the series of transactions suggested was a sham.
However, there was no absolute rule that entitlement to statutory discount should be treated as a contribution to the purchase price.

Judges:

Jonathan Parker LJ

Citations:

[2001] 33 HLR 67

Jurisdiction:

England and Wales

Citing:

Appeal fromAshe v Mumford and Others ChD 7-Mar-2000
The Regulation under question was procedural;, and a failure to comply with its requirements was not to be deemed fatal. The requirement for a trustee to identify the transactions to be set aside did not require every single part of the scheme to be . .

Cited by:

CitedRichards v Wood CA 27-Feb-2014
The defendants had purchased their council house with financial asistance from their son, the claimant. He now asserted that a trust existed in the property in his favour.
Held: ‘unless there is a secure tenancy the statutory right to buy . .
Lists of cited by and citing cases may be incomplete.

Trusts, Insolvency

Updated: 15 May 2022; Ref: scu.541709

In re Lacy; Royal General Theatrical Fund Association v Kydd: 1899

Equity prevents trustees from raising limitation against their beneficiaries.
An executor, qua executor, is not an express trustee.

Judges:

Stirling J

Citations:

[1899] 2 Ch 149

Statutes:

Mortmain Act 1736

Cited by:

CitedWilliams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Lists of cited by and citing cases may be incomplete.

Trusts, Charity

Updated: 15 May 2022; Ref: scu.537362

Re Pauling’s Settlement Trusts: ChD 1962

Family money had been placed into a trust to be managed by a bank. It was said that the bank had wrongly advanced money to the daughter allowing her to fritter away large parts of the capital
Held: The bank had misunderstood the power of advancement given, and was liable to replace nearly pounds 15,000 as having been expended in breach of trust for which they could be compelled to account.
Wilberforce J said: ‘The . . court has to consider all the circumstances in which the concurrence of the cestui que trust was given with a view to seeing whether it is fair and equitable that, having given his concurrence, he should afterwards turn round and sue the trustees; . . subject to this, it is not necessary that he should know that what he is concurring in is a breach of trust, provided that he fully understands what he is concurring in, and . . it is not necessary that he should himself have directly benefited by the breach of trust.’
Where a limitation period applies then it it is not open to the court to consider the question of laches.

Judges:

Wilberforce J

Citations:

[1962] 1 WLR 86

Statutes:

Trustee Act 1925

Jurisdiction:

England and Wales

Cited by:

Appeal fromRe Pauling’s Settlement Trusts (No.1) CA 29-May-1963
Property had been placed in trust for the daughter of the family, fearing that she might fritter it away. The trust was managed by the bank. The judge had found that, having misunderstood the powers of advancement given, the bank was liable to repay . .
CitedPullan v Wilson and Others ChD 28-Jan-2014
The court was asked difficult questions concerning the reasonableness of the remuneration charged to a number of family trusts by a professional trustee.
Held: Excessive claims for fees had been made, and the trustees were ordered to repay . .
ConsideredGreen and others v Gaul and others CA 28-Jul-2006
The court considered the validity and effect of a compromise agreement reached to settle dispute in administration of estate. The time for making a claim against the executor of an estate begins to run from the time when the executor has paid the . .
CitedHenchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .
Lists of cited by and citing cases may be incomplete.

Trusts, Limitation

Updated: 15 May 2022; Ref: scu.534162

Smith v Lucas: CA 1881

Jessel MR said: ‘What is the effect of such a covenant in equity? It has been said that the effect in equity of the covenant of the wife, as far as she is concerned, is that it does not affect her personally, but that it binds the property: that is to say, it binds the property under the doctrine of equity that that is to be considered as done what ought to be done. That is in the nature of specific performance of the contract no doubt. If, therefore, this is a covenant to settle the future-acquired property of the wife, and nothing more is done by her, the covenant will bind the property’.’ and
‘The settlement is one which I cannot help thinking was never intended by the framer of it to have the effect I am going to attribute to it; but, of course, as I very often say, one must consider the meaning of the words used, not what one may guess to be the intention of the parties.’ and ‘It is a cardinal principle of construction of the terms of contracts that the meaning of a document or a particular part of a document is to be sought in the document itself: ‘one must consider the meaning of the words used, not what one may guess to be the intention of the parties”.

Judges:

Jessel MR

Citations:

(1881) 18 Ch D 531

Cited by:

CitedPullan v Coe ChD 1913
A marriage settlement settled property on the husband, wife, and prospective children. The wife also promised to settle after-acquired property on the same trusts. She later received andpound;285 which she invested in part in bearer bonds which . .
Lists of cited by and citing cases may be incomplete.

Trusts, Contract

Updated: 15 May 2022; Ref: scu.471502

In re Sharp’s Settlement Trusts: 1972

Judges:

Pennycuick V-C

Citations:

[1973] Ch 331, (1972) 36 Conv 436

Jurisdiction:

England and Wales

Cited by:

CitedBelmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Trusts, Insolvency

Updated: 15 May 2022; Ref: scu.442618

Ahmed v Kendrick: 1987

The effect of the passing of a beneficial interest by a fraudster owner of that interest to a third party is to sever the beneficial joint tenancy.

Citations:

(1987) 56 PandCR 120

Cited by:

CitedBowling and Co Solicitors v Edehomo ChD 2-Mar-2011
The court was asked ‘when an innocent vendor whose signature is forged on the documents for the conveyance of land suffers damage, for the purposes of limitation of an action arising from a solicitor’s breach of duty. Is it on the exchange of . .
Lists of cited by and citing cases may be incomplete.

Trusts, Torts – Other

Updated: 15 May 2022; Ref: scu.430277

Jones v Morgan: 24 Mar 1783

(Lincoln’s Inn Hall) Devise to trustees to pay debts, then to stand seised to the use of A ‘for Life, without impeachment of waste ; after his decease to the use of the heirs male of his body, severally, respectively, and in remainder, is an estate-tail in A. Where tenant for life pays off an incumbrance upon the estate, he shall be considered as a creditor for the money so paid ; but where tenant in tail pays, it is in exoneration of the estate of which he may make himself absolute owner. This is merely a general rule of presumption or primary inference ; and therefore liable to be rebutted by circumstantial evidence to the contrary.

Citations:

[1783] EngR 55, (1778, 1783) 1 Bro CC 206, (1783) 28 ER 1086

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 15 May 2022; Ref: scu.372184

The Rev Adam John Walker And Loveday His Wife, Late Loveday Whitmore Spinster, William Roberts Since Deceased, And John Sanderson v William Symonds Since Deceased, John Lilly, Isaac Harris, And Johanna Whitmore (By Original Bill): 6 Jul 1818

A deed of compromise executed by a cestui que trust, with the representatives and creditors of a deceased trustee was guilty of a breach of trust, rescinded, and co-trustees declared responsible.

Citations:

[1818] EngR 592, (1818) 3 Swans 1, (1818) 36 ER 751

Links:

Commonlii

Trusts

Updated: 15 May 2022; Ref: scu.332592

Ann Rycroft, The Wife Of Henry Rycroft, And Pamela Rycroft, An Infant, By Their Next Friend v William M Christy And Henry Rycroft: 15 Jun 1840

A feme covert made a disposition of property, as to which it was doubtful whether it;
was settled to her separate use, The husband disclaimed.
Held: That whether separate property or riot, the husband’s disclaimer gave effect to the disposition of
the wife.

Citations:

[1840] EngR 693, (1840) 3 Beav 238, (1840) 49 ER 93

Links:

Commonlii

Jurisdiction:

England and Wales

Family, Trusts

Updated: 15 May 2022; Ref: scu.310119

Stiffe v Everitt: 23 Jan 1836

A testator gave his residuary estate to trustees, upon trust to invest the proceeds, and pay the profits, dividends, or interest thereof to the separate use of his daughter for life, exclusive of any husband she might marry, without power of anticipation, but with a power to appoint the capital of the fund, such appointment to take effect only from and after her decease. The daughter, who, at the date of the will, and at the testator’s death, was a feme sole, afterwards married, ancl joined with her hushand in petitioning to have the fund transferrecl to him absolutely, oflering, at the same time, to execute any appointment which the Court might think proper for that purpose ; but the Court refused to make any order.
Semble, a husband and wife cannot effectually clispose of the life interest of the wife in a fund not settled to her seperate use, heyond the duration of the coverture.

Citations:

[1836] EngR 342, (1836) 1 My and Cr 37, (1836) 40 ER 290

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 15 May 2022; Ref: scu.314674

Wardle v Carter: 23 Dec 1835

A. was entitlecl for the joint lives of himself and his father to a rent-charge of andpound;500 charged on an estate of which his father was tenant for life, with remainder to A in fee. A having agreed to sell to B a perpetual rentcharge of andpound;500 issuing out of the estate, assigned to E. the rent-charge to which he was so entitled, and conveyed his reversion in fee to trustees in trust to secure to B a rent-charge of andpound;500 a year, to commence on the termination of the prior rent-charge. Held, that the transaction was not to be considered as a sale of an interest in reversion, as A when he made the agreement, had it in his power to secure to B a perpetual rentcharge of andpound;500 in possession.
In determining whether a fair price has been paid for a reversionary interest, the market value, and not an actuary’s estimate, ought to be regarded.

Citations:

[1835] EngR 1081, (1835) 7 Sim 490, (1835) 58 ER 925

Links:

Commonlii

Trusts

Updated: 15 May 2022; Ref: scu.316589

The Attorney-General v Jesus College, Oxford: 13 Feb 1861

A testator devised his estate for providing andpound;108 a year for scholars and exhibitioners of a college, and the remainder of the yearly rents for purchasing advowsons for them. By a codicil, he gave for a school and schoolmaster a house and land at Bala, and andpound;15 a year for the master, and andpound;15 to the scholars, and he gave the money necessary for keeping the school in repair; ‘there beirig andpound;4, 17s. of the present rents ‘I of his estate in Merionethshire, above the andpound;108 to the scholars and exhibitioners at the college, and andpound;15 to the schoolmaster, and andpound;15 to the scholars at Bala; but the house and land at Bala ‘being of the yearly rent of andpound;3, 13s being so much of the andpound;4, 17s., the remainder thereof is andpound;1 5s. per annum for the repairs.’ The rental having greatly increased, held that the school ‘was entitled to such a proportion of the increase as andpound;4, 17s. bore to the whole original rents.

Citations:

[1861] EngR 322, (1861) 29 Beav 163, (1861) 54 ER 589

Links:

Commonlii

Trusts

Updated: 15 May 2022; Ref: scu.284083

Harrold v Harrold: 23 Jul 1861

A trust to raise by sale of a competent part of a sum of andpound;3389 Bank annuities a sum not exceeding andpound;2000, and pay -andhe same to the Plaintiff : Held, not to be exhausted or fully performed by raising a sum of 31391 at the Plaintiffs request.

Citations:

[1861] EngR 833, (1861) 3 Giff 192, (1861) 66 ER 378

Links:

Commonlii

Trusts

Updated: 15 May 2022; Ref: scu.284594

Swales v Inland Revenue Commissioners: 1984

Nicholls J said: ‘It is trite law that trustees cannot fetter the exercise by them at a future date of a discretion possessed by them as trustees.’

Judges:

Nicholls J

Citations:

[1984] 3 All ER 16

Cited by:

CitedJones and others v Firkin-Flood ChD 17-Oct-2008
The trustees had contracted to sell shares in a private company held within the estate. A family member now claimed that they were held in trust after a settlement of a possible challenge to the will based in lack of testamentary capacity and undue . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 15 May 2022; Ref: scu.277068

Murphy v Murphy: ChD 2 May 1998

Where a plaintiff could show that he might have some potential interest under a discretionary trust, the settlor could be obliged by the court to disclose the names and addresses of the settlement trustees.

Citations:

Times 02-May-1998, [1999] 1 WLR 282

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 15 May 2022; Ref: scu.84129

In Re Estate of Monica Dale Dec, Proctor v Dale: ChD 11 Feb 1993

The claimant’s parents had made mutual wills dividing their estates equally between the claimant and her brother. After the father’s death the mother chaged her will to give the biggest benefit to the brother.
Held: The mother could change her will, but was under a binding trust to deal with the assets subject to the mutuality trust in accordance with that trust. With the rules on mutual wills, the element of mutuality operates to extend the enforceability to allow others beyond the couple making the wills to enforce the gifts agreed to be made. The aim of the principle was to prevent one party who transferred assets relying upon the mutuality of the wills to protect them, from being defrauded. The doctrine did not depend upon the second testator having received a benefit under the first will. To be enforceable there had to be a legally binding contract to make and not to revoke wills and one testator had had to have died having performed his or her part of that bargain.

Judges:

Morritt J

Citations:

Gazette 07-Apr-1993, Times 16-Feb-1993, Independent 14-Apr-1993, [1993] 4 All ER 129

Citing:

CitedDufour v Pereira 1769
Nature of Joint and Mutual Wills
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
CitedLord Walpole v Lord Orford HL 1797
The court considered the difference between an obligation accepted in law, and what was described as ‘an honourable engagement’. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 15 May 2022; Ref: scu.81867

D’Abo v Paget and Others (No 2): ChD 10 Aug 2000

Where a beneficiary having brought successful action against the trust fund, the rule in In re Buckton should still apply, but where the trustees could have brought the same action themselves, and had been ready and willing to do so, the beneficiary should not be awarded costs out of the trust fund. Under the new procedure, the court should take a more robust attitude to such claims. In effect the sole reason for the claimant’s participation was to make a claim for costs if the trustees failed.

Citations:

Gazette 05-Oct-2000, Times 10-Aug-2000

Trusts, Wills and Probate, Costs

Updated: 15 May 2022; Ref: scu.79774

Abrahams v Trustee In Bankruptcy of Abrahams: ChD 26 Jul 1999

A member of a lottery syndicate having paid into it, acquired the right that any winnings should be held in trust upon the terms of the syndicate’s lottery agreement which then applied. It was possible that such a right could be held as a property right upon a resulting trust. A couple, members of a syndicate, separated, but the wife paid in both names. She was entitled since she was the originator of both fees.

Citations:

Times 26-Jul-1999, Gazette 11-Aug-1999

Trusts

Updated: 15 May 2022; Ref: scu.77621

Denvir v Denvir: 1969

Citations:

1969 SLT 301

Cited by:

CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Scotland, Trusts

Updated: 14 May 2022; Ref: scu.251490

Galloway v Galloway: 1929

Citations:

1929 SC 160

Cited by:

CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Scotland, Trusts

Updated: 14 May 2022; Ref: scu.251488

Regina v District Auditor No 3 Audit District of West Yorkshire Metropolitan County Council ex parte West Yorkshire Metropolitan County Council: 1986

Citations:

[1986] RVR 24

Jurisdiction:

England and Wales

Cited by:

CitedGibbs v Harding and others ChD 12-Jan-2007
The testatrix left a will anticipating making another. The court was asked whether a clause leaving her estate to ‘be taken over by the Diocese of Westminster to hold in trust for the Black community of Hackney’ was valid.
Held: The gift was . .
Lists of cited by and citing cases may be incomplete.

Rating, Trusts

Updated: 14 May 2022; Ref: scu.247690

Re Grant’s Will Trusts: ChD 1980

The deceased left property to the Labour Party property committee.
Held: A trust created by making a gift to the members of an unincorporated assoication as at the date of the gift can be wound up only if under the rules, the members could, at any time, resolve to terminate the trust and distribute the fund to themselves. The gift therefore failed. It could not be construed as a gift to existing members (i.e. it did not fall within category (1) of Neville Estates Ltd v Madden), and that in order to fall within category (2) it was essential that the members of the association for the time being should be free to dispose of it in any way they thought fit, including distributing it amongst themselves.

Judges:

Vinelott J

Citations:

[1980] 1 WLR 360

Citing:

CitedNeville Estates Ltd v Madden ChD 1962
A charitable trust was created for the benefit of the members of Catford Synagogue.
Held: The court considered three categories of valid non-charitable purpose gifts: (1) an absolute gift to members of an association at the date of the gift, . .

Cited by:

CitedHunt and Another v McLaren and others ChD 4-Oct-2006
Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 14 May 2022; Ref: scu.245260

Harman v Glencross: 1986

On the divorce, the wife applied for a property transfer order in relation to the jointly owned matrimonial home. A creditor of her husband then obtained a charging order on H’s interest. She sought its varation. The creditor said that there was little point in this since any transfer in her favour would be void against the husband’s trustee in bankruptcy under section 42.
Held: The decision in In Re Holliday was very much against the run of recent authorities. Balcombe LJ rejected the creitor’s suggestion saying: ‘the wife gave up her claim for periodical payments, and it seems to me that this constituted valuable consideration on her part which would preclude a trustee in bankruptcy of the husband from maintaining that the transfer of property order was void as against him – see Re Abbott [1983] Ch 45.’

Judges:

Balcombe LJ

Citations:

[1986] Fam 81, [1986] 2 FLR 241

Statutes:

Bankruptcy Act 1914 42

Citing:

CitedIn re Holliday CA 1981
A property adjustment order cannot be made against a bankrupt former spouse because the property of the bankrupt vests in the trustee in bankruptcy against whom an order under section 24 cannot be made. It was highly unlikely that postponement of . .
CitedIn re Abbott ChD 1983
W divorced H, and under a property adjustment order made by consent, the jointly owned matrimonial home was transferred to her outright. H was made bankrupt less than two years later, and the trustee sought a declaration that the consent order or . .

Cited by:

CitedDonohoe v Ingram ChD 20-Jan-2006
The appellant had lived with the bankrupt for several years, and sought an order delayng sale of the house they had lived in until their children had grown up. She said the circumstances were exceptional.
Held: The fact that the delay might . .
CitedHaines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 14 May 2022; Ref: scu.238750

Re CL: 1969

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.

Citations:

[1969] 1 Ch 587

Cited by:

CitedX v A and others ChD 29-Nov-2005
The wife sought confirmation that the trustees of a discretionary marriage settlement created by her husband could release sums which she intended to pay out for charitable purposes.
Held: The trust required money to be released for the . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 14 May 2022; Ref: scu.237753

Re Walker: 1901

Citations:

[1901] 1 Ch 897

Jurisdiction:

England and Wales

Cited by:

CitedX v A and others ChD 29-Nov-2005
The wife sought confirmation that the trustees of a discretionary marriage settlement created by her husband could release sums which she intended to pay out for charitable purposes.
Held: The trust required money to be released for the . .
Lists of cited by and citing cases may be incomplete.

Trusts, Charity

Updated: 14 May 2022; Ref: scu.237755

Re Hampden’s Settlement Trusts: 1977

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.’

Citations:

[1977] TR 177

Trusts

Updated: 14 May 2022; Ref: scu.237754

Kyriakides v Pippas: 2004

When considering the trusts on which land is held, and where there is no declaration of trust, the court puts itself in the position of a jury and considers all the circumstances of the case, so as to arrive at the purchaser’s real intention: ‘I suspect the position we have now reached is that the courts will always strive to work out the real intention of the purchaser and will only give effect to the presumptions of resulting trust and advancement where the intention cannot be fathomed and the ‘long-stop’ or ‘default’ solution is needed.’

Judges:

Gabriel Moss QC

Citations:

[2004] EWHC (Ch) 644

Jurisdiction:

England and Wales

Citing:

CitedLavelle v Lavelle and others CA 11-Feb-2004
Property had been purchased in the name of of the appellant by her father. She appealed a finding that the presumption of advancement had been rebutted.
Held: The appeal failed. The presumption against advancement had been rebutted on the . .
CitedLloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .

Cited by:

CitedCrossley v Crossley CA 21-Dec-2005
The claimant appealed an order that a house was to be held in equal shares with her son. The house was registered in their joint names, but the transfer contained no declaration of the interests. The house had been originally bought by the mother . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 14 May 2022; Ref: scu.237546

Gascoigne v Gascoigne: 1918

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.

Citations:

[1918] 1 KB 223

Jurisdiction:

England and Wales

Cited by:

CitedTinker v Tinker CA 1970
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 . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 14 May 2022; Ref: scu.236574

Harwood v Harwood: CA 1991

The court rejected the argument that declaring in a transfer of land that the survivor ‘can give a valid receipt for capital money arising on a disposition of the land’ in itself amounts to an express declaration of a beneficial joint tenancy.

Citations:

[1991] 1 FLR 274

Jurisdiction:

England and Wales

Cited by:

CitedStack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 13 May 2022; Ref: scu.230913

Collier v Collier: CA 30 Jul 2002

Fraudulent Intent Negated Trust

The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been fearful of a potential substantial liability and it had been done to protect the property against those creditors.
Held: Equity will not permit a transferor of property by way of gift in order to perpetrate a fraud to pray in aid the existence of that illegal purpose in order to rebut a presumption of advancement. ‘the leases ‘were shams as between father and daughter’. The daughter ‘should at most be his nominee and effectively the lease should be available to be used only if required in order to deceive’. He made the grants to the daughter ‘with the intention that if it served his interest he should treat the grants as gifts, but if it did not he would claim that the grant was subject to his beneficial interest.’ The transfers were carried out ‘with the object of defrauding the respective mortgagees of their security’. There had been no voluntary withdrawal from the transaction. To recover the property the father needed to rely upon the agreement which set up the trust. That agreement provided that the trust should be concealed from creditors and the Inland Revenue. The result is that the father cannot dispute the effect of the transfers of the property without relying upon his illegality. The property must lie where it rests. ‘

Judges:

Lord Justice Aldous, Mance LJ

Citations:

[2002] EWCA Civ 1095, [2002] BPIR 1057, [2002] 6 ITELR 270

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoCollier v Kramer CA 1-Apr-2004
Appeal from a refusal to allow an amendment to join further parties to an action by Mr Michael Collier against solicitors . .
CitedSnell v Unity Finance Company Ltd CA 1964
The court must not permit itself to be the instrument by which an illegal contract is enforced. Points such as to illegality should be taken by the court irrespective of the wishes of the parties; and if not taken by the judge at trial, should be . .
CitedTinker v Tinker CA 1970
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 . .
CitedMuckleston v Brown 8-May-1801
‘Let the estate lie where it falls.’ . .
CitedTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
CitedTribe v Tribe CA 26-Jul-1995
Illegal intent alone rebutted presumption
The plaintiff held 499 of the 500 issued shares of a company. In 1986 he wished to retire and transferred 30 shares to his son, one of four children, who was to take over the business. In 1988 he was worried about a bill for dilapidations, and, to . .
CitedSnook v London and West Riding Investments Ltd CA 1967
Sham requires common intent to create other result
The court considered a claim by a hire-purchase company for the return of a vehicle. The bailee said the agreement was a sham.
Held: The word ‘sham’ should only be used to describe an act or document where the parties have a common intention . .
CitedA G Securities v Vaughan; Antoniades v Villiers and Bridger HL 10-Nov-1988
In Antoniades, the two tenants occupied an attic, living together. Each had at the same time signed identical agreements purporting to create licences. The landlord had reserved to himself the right to occupy the property and to allow others to . .
MentionedHolman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
CitedChettiar v Chettiar PC 14-Feb-1962
(Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .
CitedGissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
CitedLowson v Coombes CA 26-Nov-1998
A house was purchased by an unmarried couple to live together, but conveyed into the female partner’s sole name. Her partner was still married, and she feared that on his death his wife would inherit.
Held: ‘the case being one of illegality, I . .

Cited by:

CitedLavelle v Lavelle and others CA 11-Feb-2004
Property had been purchased in the name of of the appellant by her father. She appealed a finding that the presumption of advancement had been rebutted.
Held: The appeal failed. The presumption against advancement had been rebutted on the . .
CitedLavelle v Lavelle and others CA 11-Feb-2004
Property had been purchased in the name of of the appellant by her father. She appealed a finding that the presumption of advancement had been rebutted.
Held: The appeal failed. The presumption against advancement had been rebutted on the . .
See AlsoCollier v Kramer CA 1-Apr-2004
Appeal from a refusal to allow an amendment to join further parties to an action by Mr Michael Collier against solicitors . .
CitedSQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
CitedPatel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Leading Case

Updated: 13 May 2022; Ref: scu.175225

Lowson v Coombes: CA 26 Nov 1998

A house was purchased by an unmarried couple to live together, but conveyed into the female partner’s sole name. Her partner was still married, and she feared that on his death his wife would inherit.
Held: ‘the case being one of illegality, I am of the opinion that the defendant holds one half of the beneficial interest in 1 Queenswood Road on a resulting trust for the plaintiff. ‘

Judges:

Nourse LJ, Henry LJ, Walker LJ

Citations:

Times 02-Dec-1998, Gazette 03-Jun-1999, [1998] EWCA Civ 1849, [1999] 2 WLR 720, [1999] 1 FLR 799, [1999] Fam Law 91, [1999] Ch 373, [1999] 2 FCR 731

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedCantor v Cox 1975
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 . .
CitedTinker v Tinker CA 1970
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 . .
CitedTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
CitedMuckleston v Brown 8-May-1801
‘Let the estate lie where it falls.’ . .

Cited by:

CitedCollier v Collier CA 30-Jul-2002
Fraudulent Intent Negated Trust
The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . .
CitedSQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
CitedJones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts, Equity

Updated: 13 May 2022; Ref: scu.145328

Cantor v Cox: 1975

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.’

Judges:

Plowman V-C

Citations:

(1975) 239 EG 121

Jurisdiction:

England and Wales

Citing:

CitedMuckleston v Brown 8-May-1801
‘Let the estate lie where it falls.’ . .

Cited by:

CitedLowson v Coombes CA 26-Nov-1998
A house was purchased by an unmarried couple to live together, but conveyed into the female partner’s sole name. Her partner was still married, and she feared that on his death his wife would inherit.
Held: ‘the case being one of illegality, I . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 13 May 2022; Ref: scu.236575

Buttle v Saunders: ChD 1950

Trustees for sale had struck a bargain for the sale of trust property but had not bound themselves by a legally enforceable contract.
Held: They had a duty to consider and explore a better offer that they received, and not to carry through the bargain to which they felt in honour bound.
Wynn-Parry J said: ‘It is true that persons who are not in the position of trustees are entitled, if they so desire, to accept a lesser price than that which they might obtain on the sale of property, and not infrequently a vendor, who has gone some lengths in negotiating with a prospective purchaser, decides to close the deal with that purchaser, notwithstanding that he is presented with a higher offer. It redounds to the credit of a man who acts like that in such circumstances. Trustees, however, are not vested with such complete freedom. They have an overriding duty to obtain the best price which they can for their beneficiaries. It would, however, be an unfortunate simplification of the problem if one were to take the view that the mere production of an increased offer at any stage, however late in the negotiations, should throw on the trustees a duty to accept the higher offer and resile from the existing offer. For myself, I think that trustees have such a discretion in the matter as will allow them to act with proper prudence. I can see no reason why trustees should not pray in aid the common-sense rule underlying the old proverb: ‘A bird in the hand is worth two in the bush.’ I can imagine cases where trustees could properly refuse a higher offer and proceed with a lower offer. Each case must, of necessity, depend on its own facts.’

Judges:

Wynn-Parry J

Citations:

[1950] 2 All ER 193

Jurisdiction:

England and Wales

Cited by:

CitedCowan v Scargill and Others ChD 13-Apr-1984
Trustee’s duties in relation to investments
Within the National Coal Board Pension scheme, the trustees appointed by the NCB were concerned at the activities of the trustees of the miners, and sought directions from the court. The defendants refused to allow any funds to be invested abroad. . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 13 May 2022; Ref: scu.222823

McFarlane v McFarlane: CANI 1972

The parties disputed their respective shares in the family home. The facts in Pettitt and Gissing ‘were not such as to facilitate or encourage a comprehensive statement of this vexed branch of the law’ and ‘much remains unsettled.’ The court reviewed the two cases: ‘two points were put beyond question. The ‘family assets’ doctrine was definitely rejected. See Pettitt per Lord Reid, per Lord Hodson, and per Lord Upjohn. And, secondly, section 17 of the Act of 1882 was held only to be a procedural provision which did not empower the court to alter the existing rights of the parties. See per Lord Reid . . per Lord Morris of Borth-y-Gest . . per Lord Hodson . . per Lord Upjohn . . And per Lord Diplock.
These decisions, as I understand them, have also established or affirmed two rather less negative propositions of law to which I must now refer. The first is that, in the absence of proof to the contrary, a spouse who acquired the legal title to property purchased with the aid of a substantial monetary contribution from the other spouse will hold the property subject to a beneficial interest therein belonging to the other spouse; see Pettitt, per Lord Reid at page 749B, per Lord Hodson at p 810G, per Lord Upjohn at p 815 G-H; and Gissing per Lord Pearson at p 264G-265B. This may be the result of some binding agreement between the spouses; but more usually it will flow from a resulting trust in favour of the contributing spouse who has not the legal title. The extent of the beneficial interests will depend on the circumstances. They will not necessarily be equal, but may be held so where that conclusion accords with the broad merits of the respective claims or with what is fair and reasonable when there is some difficulty or uncertainty in assessing the contributions: see Rimmer v Rimmer [1953] 1 QB 63. The second proposition which I take to be now accepted in Pettitt and Gissing must be stated in a qualified form. It is that in certain circumstances the first proposition can also apply in favour of the spouse without the legal title where that spouse has contributed to the purchase, not directly by finding a part of the price, but indirectly and in a manner which has added to the resources out of which the property has been acquired as, for example, by work done or services rendered or by relieving the other spouse of some, at any rate, of his or her financial obligations.’

Judges:

Lord MacDermott, Lord Chief Justice of Northern Ireland

Citations:

[1972] NI 59

Jurisdiction:

Northern Ireland

Citing:

CitedRimmer v Rimmer 1953
Where it is not possible for a court to identify the precise contributions made by partners to a property, the court may take a view that ‘They will not necessarily be equal, but may be held so where that conclusion accords with the broad merits of . .
CitedGissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
CitedPettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .

Cited by:

ApprovedOxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 13 May 2022; Ref: scu.199947

Springette v Defoe: CA 1 Mar 1992

Property was purchased in joint names, but with no express declaration of the beneficial interests. The couple had lived together for a short time as joint tenants of the local authority. They were able to purchase at a substantial discount from the estimated market value because Miss S had been a tenant of the local authority elsewhere for 11 years or more. The property was purchased with the assistance of a building society mortgage – for the repayment of which they were both liable as covenantors. Treating the mortgage monies as provided in equal shares – and giving Miss Springette credit for the whole of the tenant’s discount – her contribution to the purchase was 75% or thereabouts. They agreed that they were each intended to have some beneficial interest in the property; and it was found as a fact by the trial judge that they never had any discussion at all, at or before the time of the purchase, about what their respective interests were to be.
Held: The property was owned in equal shares; not on the basis of his finding that, although uncommunicated to each other, that was, in fact, the intention of each at the time, but because: ‘It is my judgment that there is sufficient evidence on the facts of inference of common intention or arrangement between the parties that the property should be owned in equal shares’.
Lord Justice Dillon: ‘In Walker v Hall I expressed the view at p 134C that it was not open to this court, in the absence of specific evidence of the parties’ intentions, to hold that the property there in question belonged beneficially to the parties in equal shares, notwithstanding their unequal contributions to the purchase price, simply because it was bought to be their family home and they intended – or possibly one should say ‘hoped’ – that their relationship should last for life. The effect is that, in the absence of an express declaration of the beneficial interests, the court will hold that the joint purchasers hold the property on a resulting trust for themselves in the proportions in which they contributed directly or indirectly to the purchase price, unless there is sufficient specific evidence of their common intention that they should be entitled in other proportions – eg in equal shares notwithstanding unequal contributions – to rebut the presumption of resulting trust.’ and ‘The common intention must be founded on evidence such as would support a finding that there is an implied or constructive trust for the parties in proportions to the purchase price. The court does not as yet sit, as under a palm tree, to exercise a general discretion to do what the man in the street, on a general overview of the case, might regard as fair.’ and ‘But the common intention of the parties must, in my judgment, mean a shared intention communicated between them. It cannot mean an intention which each happened to have in his or her own mind but had never communicated to the other.’ and ‘Since, therefore, it is clear in the present case that there never was any discussion between the parties about what their respective beneficial interests were to be, they cannot, in my judgment, have had in any relevant sense any common intention as to the beneficial ownership of the property. . . . The presumption of resulting trust is not displaced.’
Lord Justice Steyn: ‘Given that no actual common intention to share the property in equal beneficial shares was established, one is driven back to the equitable principle that the shares are to be presumed to be in proportion to the contributions.’

Judges:

Lord Justice Dillon, Lord Justice Steyn, Sir Christopher Slade

Citations:

[1992] 2 FLR 388

Jurisdiction:

England and Wales

Citing:

CitedGissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
CitedGrant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .

Cited by:

CitedOxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
CitedHuntingford v Hobbs CA 1-Mar-1992
The parties lived together in a property transferred to the woman after her divorce. That house was sold and the defendant contributed the capital. There was a joint mortgage, but the plaintiff alone had an income from which to make payments. The . .
ExplainedEvans v Hayward CA 1-Jun-1992
The property had been bought in joint names at a discounted price under a ‘right to buy’ conferred by the Housing Act 1985; but where the discount was substantially attributable to the plaintiff’s former occupation as local authority tenant. The . .
CitedSaville v Goodall CA 1993
The court considered the requirements to establish that property purchased in one name but for an unmarried couple were to be held on trust: ‘[Counsel] referred us to a recent decision of this court in Springette v Defoe [1992] 2 FLR 388, which . .
CitedMidland Bank v Cooke and Another CA 13-Jul-1995
Equal equitable interest inferrable without proof
The bank sought to enforce a charge given by the husband to secure a business loan. The property was purchased from the husband’s and his family’s resources and the loan, and was in his name. There had been no discussion or agreement between husband . .
CitedStack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
CitedJones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
CitedRichards v Wood CA 27-Feb-2014
The defendants had purchased their council house with financial asistance from their son, the claimant. He now asserted that a trust existed in the property in his favour.
Held: ‘unless there is a secure tenancy the statutory right to buy . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 13 May 2022; Ref: scu.199514

Re Biddencare Ltd: ChD 1994

The court set out the principles applicable on making a Beddoe application. The court should consider the strength of the case, the likely costs order in the eventual proceedings, and the justice of the application itself.

Judges:

Mary Arden QC

Citations:

[1994] 2 BCLC 160

Citing:

CitedIn re Beddoe, Downes v Cottam CA 1893
In case of doubt as to the desirability of the intended proceedings (whether as plaintiff or defendant), trustees may apply to the court for directions. This will protect the trustees from adverse costs orders. If given leave to sue or defend by the . .

Cited by:

CitedAlsop Wilkinson v Neary and Others ChD 4-Nov-1994
The second defendant, a solicitor, had fraudulently taken money from trusts, and paid money into trusts for his own family. It was claimed that the payments were intended to defeat the recovery of the funds. The trustees sought protection on costs . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 13 May 2022; Ref: scu.198266

Beckford v Wade: PC 1805

(Jamaica) The board was concerned with the application of the English statutes of limitation, which were held to apply in Jamaica subject to a Jamaican statute excepting (among other people) trustees. Sir William Grant MR said: ‘The question then is, what the true construction of the Act is in this particular: whether it meant only actual and express trusts, as between cestui que trusts and trustees properly so called, upon which length of time ought to have no effect: or whether it intended to leave open to perpetual litigation every equitable question relative to real property… It is certainly true, that no time bars a direct trust, as between cestui que trust and trustee. But if it is meant to be asserted that a court of equity allows a man to make out a case of constructive trust at any distance of time, after the facts and circumstances happened, out of which it arises, I am not aware that there is any ground for a doctrine, so fatal to the security of property as that would be.’

Judges:

Sir William Grant MR

Citations:

(1805) 17 Ves Jun 87, [1805] EngR 116, (1805) 17 Ves Jun 87, (1805) 34 ER 34

Links:

Commonlii

Jurisdiction:

Commonwealth

Cited by:

CitedWilliams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 13 May 2022; Ref: scu.196007

Pallant v Morgan: ChD 1952

The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed formula, the details of which were to be agreed later. The defendant’s agent was successful, but when the parties failed to agree on the details of division the defendant retained the whole of the land for himself.
Held: Although the agreement was incomplete in its detail and too uncertain to be specifically enforceable, the defendant held the land on trust for himself and the plaintiff jointly, since his agent had made the bid on behalf of himself and the plaintiff’s agent on the basis of an agreement for division and it would amount to sanctioning a fraud on the defendant’s part to allow him to retain it.
Harman J said: ‘The plaintiff and the defendant have failed to agree on a division, and the court cannot compel them to agree. The best it can do is to decree that the property is held by the defendant for himself and the plaintiff jointly, and if they still fail to agree on a division the property must be resold, either party being at liberty to bid, and the proceeds of sale divided equally after repaying to the defendant the andpound;1,000 which he paid.’

Judges:

Harman J

Citations:

[1953] Ch 43, [1952] 2 All ER 951

Jurisdiction:

England and Wales

Cited by:

ExaminedBanner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
CitedThames Cruises Limited v George Wheeler Launches Limited, Kingwood Launches Limited ChD 16-Dec-2003
The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .
CitedLondon and Regional Investments Ltd v TBI Plc and Others CA 22-Mar-2002
TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .
CitedKilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
CitedParagon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
CitedSainsbury’s Supermarkets Ltd v Olympia Homes Limited, Hughes etc ChD 17-Jun-2005
The claimant sought rectification of the land register. In a development deal, an option agreement had not been registered, and the land sold on. The land was required to allow the building of a roundabout necessary for the intended store. An . .
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
CitedKilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd and Another CA 16-Nov-2005
The defendant had brought in the claimant in order to assist in satisfying its own obligations under a lease. The joint venture was not recorded in a formal agreement. The appellant asserted that a constructive trust had been created. The judge had . .
CitedClarke and Another v Corless and Another ChD 8-Jul-2009
The parties disputed whether one could retain for his own benefit land on an estate reserved for an estate road. A trust was claimed under Pallant saying that the parties had made an informal agreement before the property was purchased.
Held: . .
CitedClarke and Another v Corless and Another CA 31-Mar-2010
The claimants appealed against refusal of a declaration that a neighbouring access road and land was held on a constructive trust. They said that an agreement bewteeen the parties should have been effective to impose a trust on the defendants. The . .
CitedBenedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .
CitedBenedetti and Another v Sawiris and Others ChD 15-Jun-2009
The claimant sought payment for his services to the defendants for his work in facilitating a substantial buy out of an Italian energy company.
Held: The claim succeeded on a quantum meruit basis to the extent of 75m euros but not otherwise. . .
CitedGenerator Developments Ltd v Lidl UK Gmbh CA 8-Mar-2018
Generator appealed from a refusal of an equitable interest in land acquired by the responent . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 13 May 2022; Ref: scu.195993

Warman International Ltd v Dwyer: 1995

(High Court of Australia) A fiduciary diverted a business in breach of his fiduciary duty.
Held: ‘The outcome in cases of this kind will depend upon a number of factors. They include the nature of the property, the relevant powers and obligations of the fiduciary and the relationship between the profit made and the powers and obligations of the fiduciary. Thus, according to the rule in Keech v. Sanford, a trustee of a tenancy who obtains for himself the renewal of a lease holds the new lease as a constructive trustee, even though the landlord is unwilling to grant it to the trust . . A similar approach will be adopted in a case in which a fiduciary acquires for himself a specific asset which falls within the scope and ambit of his fiduciary responsibilities, even if the asset is acquired by means of the skill and expertise of the fiduciary and would not otherwise have been available to the person to whom the fiduciary duty is owed. But a distinction should be drawn between cases in which a specific asset is acquired and cases in which a business is acquired and operated. Such a distinction was drawn by Upjohn J in In re Jarvis (decd) in the context of considering a defence of laches, acquiescence and delay. However, in our view, the distinction is also relevant in the context of the fiduciary’s liability to account for profits.’ Their Honours continued: ‘In the case of a business it may well be inappropriate and inequitable to compel the errant fiduciary to account for the whole of the profit of his conduct of the business or his exploitation of the principal’s goodwill over an indefinite period of time. In such a case, it may be appropriate to allow the fiduciary a proportion of the profits, depending upon the particular circumstances. That may well be the case when it appears that a significant proportion of an increase in profits has been generated by the skill, efforts, property and resources of the fiduciary, the capital which he has introduced and the risks he has taken, so long as they are not risks to which the principal’s property has been exposed. Then it may be said that the relevant proportion of the increased profits is not the product or consequence of the plaintiff’s property but the product of the fiduciary’s skill, efforts, property and resources. This is not to say that the liability of a fiduciary to account should be governed by the doctrine of unjust enrichment, though that doctrine may well have a useful part to play; it is simply to say that the stringent rule requiring a fiduciary to account for profits can be carried to extremes and … in cases outside the realm of specific assets the liability of the fiduciary should not be transformed into a vehicle for the unjust enrichment to the Plaintiff’.

Citations:

[1995] 128 ALR 201

Jurisdiction:

Australia

Citing:

CitedKeech v Sandford ChD 1726
Trustee’s Renewed Lease also Within Trust
A landlord refused to renew a lease to a trustee for the benefit of a minor. The trustee then took a new lease for his own benefit. The new lease had not formed part of the original trust property; the minor could not have acquired the new lease . .

Cited by:

CitedCrown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedImageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 13 May 2022; Ref: scu.192213

Re Deans: 1954

A Probate Judge is not considered to be a trustee.

Citations:

[1954] 1 WLR 332

Jurisdiction:

England and Wales

Cited by:

MentionedEarnshaw and Others v Hartley CA 31-Mar-1999
An administrator de son tort, who was also a beneficiary, held the estate property on trust, and so could not establish adverse possession against the estate during the period of trusteeship. He held a sufficient interest in the assets already. A . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 13 May 2022; Ref: scu.190223

Sharpe Re, Ex parte Trustee of the Bankrupt v Sharpe: ChD 30 Jul 1979

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.’

Judges:

Browne-Wilkinson J

Citations:

[1980] 1 WLR 219, (1980) 39 P and CR 459, [1980] 1 All ER 190

Jurisdiction:

England and Wales

Cited by:

CitedTackaberry and Another v Hollis and others ChD 13-Nov-2007
A house had been purchased in 1982 by one member of a large family. Other family members now disputed whether the land was held in trust for them. A constructive trust was asserted.
Held: The claimants had failed to establish that a . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Land, Trusts

Updated: 12 May 2022; Ref: scu.190151

Martin v Martin: 1987

A property was bought by parties as ‘beneficial joint tenants in equal shares’.
Held: The words ‘in equal shares’ had the effect of severing any joint tenancy created by the first words of the phrase. The law would apply the first of two mutually inconsistent provisions. That created the joint tenancy. The words however continued, and the last words severed the joint tenancy just created. Millett J said: ‘where there are two inconsistent provisions in a deed which cannot be reconciled, they are to be treated as if they were contained in separate deeds executed by the same parties, one after the other, and in the same order in which the two inconsistent provisions are to be found in the deed. That, of course, explains the difference in treatment between a deed and a will; for in the case of two inconsistent wills made by the same testator, the later revokes the former and prevails, whereas in the case of two inconsistent deeds the result will depend on whether the grantor had put it out of his power by the first deed to bring about the consequences purported to be effected by the second.’

Judges:

Millett J

Citations:

[1987] P and CR 238

Jurisdiction:

England and Wales

Citing:

ExplainedSlingsby’s Case 1587
Where two inconsistent provisions in a deed cannot be reconciled, the earlier provision prevails over the later. . .

Cited by:

CitedTaylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
CitedSlater v Simm ChD 27-Apr-2007
The deceased and her partner did not marry but owned three properties together. They could not agree on the interpretation of the documents setting out their interests, and whether they had been varied.
Held: The court set out the various . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 12 May 2022; Ref: scu.190026

Jones v Challenger: CA 1960

The test under the section was whether it was inequitable to make the order for sale where one of the joint beneficiaries, who in that case were ex-husband and wife, wished to realise their investment in the property.
Held: Referring to the statement of principle in in re Mayo, described as ‘a simple uncomplicated case of a trust for sale of freehold property, where the beneficiaries were brother and sister, and where there was no suggestion that either of them were intended or even wished to occupy the property . . But this simple principle cannot prevail where the trust itself in the circumstances in which it was made show that there was a secondary or collateral object besides that of sale . . it is at any rate wrong and inequitable for one of the parties to the trust to invoke the letter of the trust in order to defeat one of its purposes, whether that purpose be written or unwritten, and the court will not permit it.’

Judges:

Devlin LJ

Citations:

[1960] 1 All ER 785, [1961] 1 QB 176

Statutes:

Law of Property Act 1925 30

Jurisdiction:

England and Wales

Citing:

CitedIn re Mayo ChD 1943
The court discussed the duty of trustees to sell in the absence of unanimity: ‘The trust for sale will prevail, unless all three trustees agree in exercising the power to postpone.’ . .

Cited by:

CitedWilkinson v Chief Adjudication Officer CA 24-Mar-2000
The claimant owned a half share in a property. It was said that this brought her disposable capital above the limit to make a claim. She had inherited it, but had transferred it to her brother in satisfaction of her mother’s wishes. . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 12 May 2022; Ref: scu.189980

Huntingford v Hobbs: CA 1 Mar 1992

The parties lived together in a property transferred to the woman after her divorce. That house was sold and the defendant contributed the capital. There was a joint mortgage, but the plaintiff alone had an income from which to make payments. The plaintiff later contributed the cost of an extension.
Held: The property had been transferred into the joint names of the parties by a transfer which contained no declaration of trust in express terms, but which did include a declaration as to the power of the survivor to give a receipt for capital money arising on a disposition of the land. The primary submission advanced on the appeal was that a transfer in that form was to be construed as a declaration by the parties that they held the property for themselves as joint tenants. There was sufficient evidence of a common intention that the property should be shared. The plaintiff’s assumption of responsibility for all the mortgage repayments amounted to a capital cash contribution. The property was to be treated as having been acquired by the parties as a joint venture, and held in proportion to the contributions, not just the actual capital contributions. The declaration was insufficient to amount to an express declaration of trust.

Judges:

Lord Justice Dillon, Lord Justice Steyn and Sir Christopher Slade

Citations:

[1993] 1 FLR 736

Jurisdiction:

England and Wales

Citing:

CitedSpringette v Defoe CA 1-Mar-1992
Property was purchased in joint names, but with no express declaration of the beneficial interests. The couple had lived together for a short time as joint tenants of the local authority. They were able to purchase at a substantial discount from the . .

Cited by:

CitedOxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
CitedEvans v Hayward CA 1-Jun-1992
The property had been bought in joint names at a discounted price under a ‘right to buy’ conferred by the Housing Act 1985; but where the discount was substantially attributable to the plaintiff’s former occupation as local authority tenant. The . .
CitedCurley v Parkes CA 25-Oct-2004
The claimant sought leave to an appeal an order dismissing his claim for an interest in the property owned by his former partner and in which they had co-habited. This was the second such house. He sought an interest under a resulting trust, having . .
CitedStack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 12 May 2022; Ref: scu.189974

Hammond v Mitchell: 1992

The court described the process of deducing what were the intentions of the parties when purchasing property: ‘The primary emphasis accorded by the law in cases of this kind to express discussions between the parties (‘however imperfectly remembered and however imprecise their terms’) means that the tenderest exchanges of a common law courtship may assume an unforeseen significance many years later when they are brought under equity’s microscope and subjected to an analysis under which many thousands of pounds of value may be liable to turn on fine questions as to whether the relevant words were spoken in earnest or in dalliance and with or without representational intent.’

Judges:

Waite J

Citations:

[1992] 2 All ER 109, [1991] 1 WLR 1127

Jurisdiction:

England and Wales

Family, Trusts

Updated: 12 May 2022; Ref: scu.189962

Jones v Westcomb: 1711

A gift on a contingency which does not occur nevertheless takes effect on the happening of an event which is a fortiori.

Citations:

(1711) Prec Ch 316

Jurisdiction:

England and Wales

Cited by:

AppliedBrock v Bradley 1864
A legacy to a single woman if she survives her husband takes effect if she never marries. . .
CitedVenables and others v Hornby (Her Majesty’s Inspector of Taxes) HL 4-Dec-2003
The company director taxpayer had retired from his company but stayed on as an unpaid non-executive director. The trust deed for the company’s pension scheme provided for payments to be made to an employee. The director sought relief from payment of . .
AppliedMurray v Jones 1813
A gift over in the event of a prior legatee having only one child takes effect if the prior legatee has no child. . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 12 May 2022; Ref: scu.189911

Island Holdings Ltd v Birchington Engineering Co Ltd: 7 Jul 1981

Two prospectively separate purchasers in a later ‘subject to contract’ arrangement between them had replaced their earlier concluded agreement as to how a property, if acquired, would be dealt with.
Held: Effect was to be given to the agreement by way of constructive trust, not to the ‘subject to contract’ arrangement but simply to the notion that the two parties should be obliged to share.

Judges:

Goulding J

Citations:

Unreported, 7 July 1981

Cited by:

CitedBanner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
CitedGonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
CitedThames Cruises Limited v George Wheeler Launches Limited, Kingwood Launches Limited ChD 16-Dec-2003
The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Trusts

Updated: 12 May 2022; Ref: scu.188287