Lloyds Bank plc v Rosset: CA 13 May 1988

Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of importance in the law of registered conveyancing. Shortly stated, the point is whether, to have the protection afforded to overriding interests in respect of registered land, the wife needs to be in actual occupation of the house when the legal charge is executed as distinct from being in actual occupation by the later date on which the bank’s charge is registered in the land registry.

Purchas LJ, Mustill LJ, Nicholls LJ
[1988] EWCA Civ 11, [1989] Ch 350, [1988] 3 All ER 915
Bailii
Land Registration Act 1925 70(1)(g)
England and Wales
Citing:
CitedNational Provincial Bank Ltd v Hastings Car Mart Ltd ChD 27-Mar-1963
Cross J set out the nature of overriding interests: ‘Overriding interests are, speaking generally, matters which are not usually shown on title deeds or mentioned in abstracts of title and as to which, in consequence, it is not possible to form a . .
CitedWeldon v Weldon (No 1) 27-Nov-1883
The duty of the Court to issue an attachment for non-obedience of a decree for restitution of conjugal rights is the same since the Divorce Acts as it was before.
It is not a sufficient compliance by a husband with a decree for restitution of . .
CitedIn re Boyle’s Claim ChD 1961
Mr. Boyle sought compensation in respect of a rectification of the register by removal from his title of land belonging to a neighbour. Since Mr. Boyle’s registered title was subject to overriding interests, he would not have been entitled to . .
CitedNational Provincial Bank Ltd v Hastings Car Mart Ltd CA 1964
The purpose and effect of section 70(1)(g) of the Land Registration Act 1925 was to make applicable to registered land the same rule as previously had been held to apply to unregistered land. (Russell LJ, Dissenting) ‘Nor should the mind be in any . .
CitedNational Provincial Bank v Ainsworth HL 13-May-1965
The respondent stayed on in the family home owned by her husband after he had left, and resisted a possession order sought by the chargee. The husband had charged the house as security for his business debts.
Lord Wilberforce described the . .
CitedWilliams and Glyn’s Bank Ltd v Boland HL 19-Jun-1980
Wife in Occupation had Overriding Interest
The wife had made a substantial financial contribution to the purchase price of the house which was registered only in her husband’s name, and charged to the bank. The bank sought possession. The wife resisted saying that she had an overriding . .
CitedBarnhart v Greenshields PC 5-Dec-1853
Pemberton Leigh said: ‘With respect to the effect of possession merely, we take the law to be, that if there be a tenant in possession of land, a purchaser is bound by all the equities which the tenant could enforce against the vendor, and that the . .
CitedStrand Securities Ltd v Caswell CA 2-Feb-1965
The leaving of furniture in a flat or having a key to the flat or making occasional use of it was not enough to constitute actual occupation. Where A permits B to occupy land on B’s own behalf by way of gratuitous licence, A’s capacity as licensor . .
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 . .
CitedEves v Eves CA 28-Apr-1975
The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired . .
CitedWilliams and Glyn’s Bank Ltd v Boland CA 1979
Money was raised on mortgage of registered land and paid to a single trustee holding the land on trust for sale, and it was held that the rights of beneficiaries who were in occupation and of whom no enquiries had been made were not mere minor . .
CitedMidland Bank Plc v Dobson CA 12-Jul-1985
The trial judge had been entitled to find a common intention constructive trust from evidence which he accepted that the parties treated the house as ‘our house’ and had a ‘principle of sharing everything’. Although the judge should approach such . .
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 . .
CitedIn re Connolly Brothers Ltd (No. 2) CA 1912
A company had granted a debenture over all its assets, present and future, but wishing to acquire an additional property, it approached a third party who agreed to finance the purchase against a charge. It contracted to buy the property at pounds . .
CitedSecurity Trust Co v The Royal Bank of Canada PC 1-Dec-1975
(Bahamas) A company, Fisher agreed to buy land with part of the purchase price to be paid by a fixed date and the balance secured by a mortgage to the vendor. A conveyance and a mortgage were duly executed and held in escrow pending payment of the . .
CitedChurch of England Building Society v Piskor CA 1954
A purchaser, let into possession before completion, granted weekly tenancies to Captain Hamilton and others. The plaintiff building society loaned the sum of pounds 1,600 to assist the purchaser with completion, the money being paid over on . .

Cited by:
Appeal fromLloyds 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 . .
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 . .
ApprovedAbbey National Building Society v Cann HL 29-Mar-1990
Registered land was bought with an advance from the plaintiff. The transfer and charge were registered one month later, but in the meantime, the buyer’s parents moved in. When the buyer defaulted, his mother resisted possession proceedings, saying . .
CitedScott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .

Lists of cited by and citing cases may be incomplete.

Trusts, Registered Land, Equity

Updated: 27 January 2022; Ref: scu.251494

Eves v Eves: CA 28 Apr 1975

The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired in his name alone was because she was under 21 and that, but for her age, he would have had the house put into their joint names. He admitted in evidence that this was simply an ‘excuse’.
Held: A trust was established. There must be a sufficient link between the promises relied upon and the conduct which constitutes the detriment.
Lord Denning MR spoke as to Lord Diplock’s speech on resulting or constructive trusts: ‘Lord Diplock brought it into the world and we have nourished it.’

Brightman J, Lord Denning MR, Browne J
[1975] 1 WLR 1338, [1975] 3 All ER 768, [1975] EWCA Civ 3
Bailii
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 . .

Cited by:
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 . .
CitedHyett v Stanley and others CA 20-Jun-2003
The couple had lived together at the property without being married for several years. The house was held in the man’s sole name, and after his death she sought a half share in it. It was established that she had been told she should have a half . .
CitedWayling v Jones CA 2-Aug-1993
The plaintiff and defendant were in a homosexual relationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold . .
CitedGrundy v Ottey CA 31-Jul-2003
The deceased left his estate within a discretionary trust. The claimant sought to assert an interest in it, claiming an estoppel and, under the 1975 Act, as his partner. They had lived together for four years. She had been dependent upon him . .
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 . .
CitedVan Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
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 . .
CitedParris v Williams CA 23-Oct-2008
The parties had been business partners, but the business failed, and Mr Williams was made bankrupt. Mr Parris was offered a chance to purchase two apartments, and did so in his own name. Mr Williams asserted an interest, saying that it had been a . .
CitedLloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .

Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 27 January 2022; Ref: scu.193602

Grant 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 was because she was involved in divorce proceedings and that, if the property were acquired jointly, this might operate to her prejudice in those proceedings. The title was in the defendants’ names with no express evidence of agreement her to have a beneficial interest. She had to establish a common intention acted upon by her, that she should have a beneficial interest. Equity would then not allow the defendant to deny that interest and would construct a trust to give effect to it. Two matters were need for a constructive trust. A common intention that each should have a beneficial interest. Without express words intention can be inferred from circumstances. The claimant has acted to his detriment on the basis of that common intention, with a sufficient link between the common intention and the conduct relied upon. This requires there to have been conduct on which the claimant could not reasonably have been expected to embark unless he was to have an interest in the property. (Browne-Wilkinson): ‘I suggest that in other cases of this kind, useful guidance may in the future be obtained from the principles underlying the law of proprietary estoppel which in my judgment are closely akin to those laid down in Gissing v Gissing [1971] A.C. 886. In both, the claimant must to the knowledge of the legal owner have acted in the belief that the claimant has or will obtain an interest in the property. In both, the claimant must have acted to his or her detriment in reliance on such belief. In both, equity acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention. The two principles have been developed separately without cross-fertilisation between them: but they rest on the same foundation and have on all other matters reached the same conclusions.’
Mustill LJ said: ‘(1) The law does not recognise a concept of family property, whereby people who live together in a settled relationship ipso facto share the rights of ownership in the assets acquired and used for the purposes of their life together. Nor does the law acknowledge that by the mere fact of doing work on the asset of one party to the relationship the other party will acquire a beneficial interest in that asset.
(2) The question whether one party to the relationship acquires rights to property the legal title to which is vested in the other party must be answered in terms of the existing law of trusts. There are no special doctrines of equity, applicable in this field alone.
(3) In a case such as the present the inquiry must proceed in two stages. First, by considering whether something happened between the parties in the nature of bargain, promise or tacit common intention, at the time of the acquisition. Second, if the answer is ‘Yes,’ by asking whether the claimant subsequently conducted herself in a manner which was (a) detrimental to herself, and (b) referable to whatever happened on acquisition. (I use the expression ‘on acquisition’ for simplicity. In fact, the event happening between the parties which, if followed by the relevant type of conduct on the part of the claimant, can lead to the creation of an interest in the claimant, may itself occur after acquisition. The beneficial interests may change in the course of the relationship.)
(4) For present purposes, the event happening on acquisition may take one of the following shapes. (a) An express bargain whereby the proprietor promises the claimant an interest in the property, in return for an explicit undertaking by the claimant to act in a certain way. (b) An express but incomplete bargain whereby the proprietor promises the claimant an interest in the property, on the basis that the claimant will do something in return. The parties do not themselves make explicit what the claimant is to do. The court therefore has to complete the bargain for them by means of implication, when it comes to decide whether the proprietor’s promise has been matched by conduct falling within whatever undertaking the claimant must be taken to have given sub silentio. (c) An explicit promise by the proprietor that the claimant will have an interest in the property, unaccompanied by any express or tacit agreement as to a quid pro quo. (d) A common intention, not made explicit, to the effect that the claimant will have an interest in the property, if she subsequently acts in a particular way.
(5) In order to decide whether the subsequent conduct of the claimant serves to complete the beneficial interest which has been explicitly or tacitly promised to her the court must decide whether the conduct is referable to the bargain, promise or intention. Whether the conduct satisfies this test will depend upon the nature of the conduct, and of the bargain, promise or intention.
(6) Thus, if the situation falls into category (a) above, the only question is whether the claimant’s conduct is of the type explicitly promised. It is immaterial whether it takes the shape of a contribution to the cost of acquiring the property, or is of a quite different character.’
Mustill LJ continued: ‘(7) The position is the same in relation to situations (b) and (d). No doubt it will often be easier in practice to infer that the quid pro quo was intended to take the shape of a financial or other contribution to the cost of acquisition or of improvement, but this need not always be so. Whatever the court decides the quid pro quo to have been, it will suffice if the claimant has furnished it.
(8) In considering whether there was a bargain or common intention, so as to bring the case within categories (b) and (d) and, if there was one, what were its terms, the court must look at the true state of affairs on acquisition. It must not impute to the parties a bargain which they never made, or a common intention which they never possessed.
(9) The conduct of the parties, and in particular of the claimant, after the acquisition may provide material from which the court can infer the existence of an explicit bargain, or a common intention, and also the terms of such a bargain or intention. Examining the subsequent conduct of the parties to see whether an inference can be made as to a bargain or intention is quite different from examining the conduct of the claimant to see whether it amounts to compliance with a bargain or intention which has been proved in some other way. (If this distinction is not observed, there is a risk of circularity. If the claimant’s conduct is too readily assumed to be explicable only by the existence of a bargain, she will always be able to say that her side of the bargain has been performed.)’

Nourse LJ, Sir Nicolas Browne-Wilkinson V-C, Mustill LJ
[1986] 1 Ch 638, [1986] 2 All ER 426, [1986] 3 WLR 114, [1986] EWCA Civ 4, [1986] Fam Law 300, [1987] 1 FLR 87
Bailii
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 . .
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 . .
CitedCrabb v Arun District Council CA 23-Jul-1975
The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
Held: His claim to have raised an equity was upheld. The plaintiff . .

Cited by:
CitedStoeckert v Geddes (Appeal No 66 of 1998) PC 13-Dec-1999
PC Jamaica The claimant claimed against the estate of her former partner. Though not married they had lived together for many years, and she claimed there had been an express understanding that she would receive . .
CitedRoy Green v Vivia Green PC 20-May-2003
PC (Jamaica) The claimant sought a declaration that he was entitled to one half of the marriage assets on divorce. They had each acquired various properties and assets both in Jamaica and the USA. The judge at . .
AppliedEquity and Law Home Loans Ltd v Prestidge CA 1992
A house was bought in the name of one partner in an unmarried couple. It was subject to a mortgage, and the non-owner contributed a capital sum. The landowner later remortgaged for a larger sum, but without the partner’s consent. The landowner then . .
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 . .
CitedHyett v Stanley and others CA 20-Jun-2003
The couple had lived together at the property without being married for several years. The house was held in the man’s sole name, and after his death she sought a half share in it. It was established that she had been told she should have a half . .
CitedYaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
CitedWayling v Jones CA 2-Aug-1993
The plaintiff and defendant were in a homosexual relationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold . .
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 . .
CitedStokes v Anderson CA 1991
The claimant had made two payments, amounting together to andpound;12,000, towards the acquisition of the one half share of the defendant’s ex-wife in the net equity (valued at andpound;90,000) in a house in which the claimant and the respondent . .
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 . .
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 . .
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 . .
CitedCobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
CitedStrover and Another v Strover and Another ChD 10-May-2005
Insurance policies had been taken out by the partners in a firm. The surviving family of one and the remaining partners contested ownership. The policy was held in part for the benefit of the family. The premiums had been paid from partnership . .
CitedStrover and Another v Strover and Another ChD 10-May-2005
Insurance policies had been taken out by the partners in a firm. The surviving family of one and the remaining partners contested ownership. The policy was held in part for the benefit of the family. The premiums had been paid from partnership . .
CitedVan Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
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 . .
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 . .
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 . .
CitedLloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .

Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 27 January 2022; Ref: scu.182238

Magiera v Magiera: CA 15 Dec 2016

The defendant H appealed against a refusal of a stay of the action under the 1996 Act on the basis of Brussels I.
Held: The appeal failed. Article 22 was to be narrowly construed, and it should be no wider than is needed to satisfy the objective of the provisions. However, the costs order had been made beyond the court’s powers insofar as it amounted to a chrging order and was varied as required.

Black, Sales, Irwin LJJ
[2016] EWCA Civ 1292, [2017] BPIR 472, 20 ITELR 47, [2017] 3 WLR 41, [2017] WTLR 245, [2016] WLR(D) 677, [2017] Fam 327
Bailii, FLW, WLRD
Trusts of Land and Appointment of Trustees Act 1996, Council Regulation (EC) No 44/2001 on jurisdiction and the recognition of judgments in civil and commercial matters
England and Wales

Jurisdiction, European, Trusts

Updated: 27 January 2022; Ref: scu.572417

X v A and Others: ChD 13 Oct 1999

A trustee under a will where there was a life interest had the ability to assert a lien over the estate in respect of potential liability which might be incurred because of the necessity of complying with any order for the clean-up of land forming part of the estate, even though the part of the Act which might operate was not yet in force.

Gazette 13-Oct-1999
Environmental Protection Act 1990 Part II
England and Wales

Trusts, Wills and Probate, Environment

Updated: 27 January 2022; Ref: scu.90642

Nicolson (Arbuthnott’s Curator Bonis) v Arbuthnott: SCS 7 Jun 1878

An entailer, proprietor of the estates of A and B, executed a deed of entail of B, in which he set out that ‘for the more effectually preserving’ the estate of B ‘distinct from the lordship and estate of A, as a permanent property to the second son of my only son J, . . whom failing, by death or otherwise as after mentioned, to his other sons and their heirs-male in their order, subject to the provision after mentioned, ‘ he destined the estate of B to the second son of his only son and the heirs-male of his body, whom failing to each of the other younger sons of the family in their order of seniority, calling each by name, and adjecting in the case of each this condition?’who shall not have succeeded or become next in succession to the lordship of A;’ whom failing ‘to the other heirs-male of the body of the said J who shall not have succeeded or become next in succession to the lordship of A, ‘ . . ‘whom failing to my own nearest heirs-male whomsoever.’ To this last branch of the destination no condition was specially attached, but there followed the usual clauses with reference to the mode of making up titles, and c., in the event of the prohibitive condition coming into operation, and these clauses were applied to the institute and ‘the other heirs and substitutes before named and appointed, ‘ and in another case to him ‘or any of the other heirs of tailzie before specified.’
There was a further provision, applicable to all the heirs of entail, including ‘heirs whomsoever, ‘ with regard to bonds of provision to wives and children, to the effect that ‘if the granter thereof shall succeed to the lordship of A, ‘ they should ‘in that event be absolutely null and void.’
In a competition for special service to the estate of B, between a party who claimed as the eldest son of J’s eldest son, and who was actually in possession of the lordship of A, and that party’s own second son, held (1) that both must claim under the last branch of the above destination as ‘heirs-male whomsoever’ of the entailer, the previous branch having reference to J’s younger sons exclusively; and (2) that upon a construction of the intention of the testator the prohibitive condition did not apply to the last branch of the destination.

[1878] SLR 15 – 596
Bailii
Scotland

Land, Trusts

Updated: 24 January 2022; Ref: scu.577403

Breakspear and others v Ackland and Another: ChD 19 Feb 2008

Beneficiaries sought disclosure of a wishes letter provided by the settlor to the trustees in a family discretionary trust.
Held: The confidentiality in the letter was, in the absence of some express term by the settlor, in the trustees, and they were under no obligation to disclose it. Briggs J comprehensively considered the law of England on the issue of disclosure of wish letters in the context of discretionary trusts. It was best to approach requests for disclosure as calling for the exercise of a discretion, rather than adjudication upon a proprietary right. The discretion would be exercised in accordance with what was judged to be the best interests of the beneficiaries and the due administration of the trust, and on the basis of an assessment of the objective consequences of disclosure rather than by reference to the subjective purpose for which the disclosure was sought. He emphasised that disclosure should not be assumed to be automatic.[23] The exercise of discretionary dispositive powers by trustees is inherently confidential, and this confidentiality exists for the benefit of beneficiaries rather than merely for the protection of the trustees.[24] Certain documents, particularly memoranda of wishes, are brought into existence for the sole purpose of facilitating an inherently confidential process. He disagreed with the proposition that the general trend was towards disclosure, at least in relation to memoranda of wishes.

Briggs J
[2008] EWHC 220 (Ch), Times , [2009] Ch 32, [2008] 3 WLR 698, (2007-08) 10 ITELR 852, [2008] 2 All ER (Comm) 62, [2008] WTLR 777
Bailii
England and Wales
Citing:
AppliedIn re Londonderry’s Settlement; Peat v Lady Walsh CA 3-Nov-1964
The Court considered limitations on the right to disclosure of trust documents, and in particuar the need to protect confidentiality in communications between trustees as to the exercise of their dispositive discretions, and in communications made . .
CitedVadim Schmidt v Rosewood Trust Limited PC 27-Mar-2003
PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had . .

Cited by:
CitedDawson-Damer and Others v Taylor Wessing Llp and Others ChD 6-Aug-2015
The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in . .

Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 22 January 2022; Ref: scu.264596

Japan Leasing (Europe) Plc v Shoa Leasing (Singapore) PTE Ltd: ChD 30 Jul 1999

The court considered a hire purchase agreement for an aircraft between four leasing companies and Olympic Airways. The contract documentation provided for the payment of the price in instalments to designated accounts in various currencies of one of the lessors, Japan Leasing. Japan Leasing was to receive the money on behalf of itself and the other three lessors. Japan Leasing went into administration, and a month later received an instalment into the designated accounts. The issue was whether that money was held in trust to pay their shares to the three other lessors.
Held: The court rejected the primary argument of the three solvent lessors that there was an express trust, but held that the last instalment was held on a constructive trust for the other lessors.

Nicholas Warren QC
[1999] BPIR 911, [2000] WTLR 301, [1998] EWHC 322 (Ch)
Bailii
Cited by:
Wrongy decidedBailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Trusts

Updated: 22 January 2022; Ref: scu.568651

Barnsley and Others v Noble: CA 2 Aug 2016

The court was asked as to the proper interpretation of an exoneration clause contained in a will to relieve the trustees under trusts set out in the will of personal liability in respect of certain breaches of duty by them.

Sir Terence Etherton Ch, Patten, Sales LJJ
[2016] EWCA Civ 799
Bailii
England and Wales
Citing:
See AlsoBarnsley and Others v Noble CA 30-Jun-2015
. .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 20 January 2022; Ref: scu.567880

Theodore Edgar v James Maxwell, Alias Johnstone: HL 1 Feb 1742

Fiar absolute and limited. – An estate being settled in a marriage contract upon the heirs male of the marriage; whom failing, upon the heirs male of the body of the husband by any other marriage; whom failing, upon the heirs female of the marriage; found that the heir male of the second marriage, who succeeded to the estate, might gratuitously dispose of it to the exclusion of the substitutes, the heirs female of the first marriage.

[1742] UKHL 1 – Paton – 334
Bailii
Scotland

Trusts

Updated: 20 January 2022; Ref: scu.556480

In re Tilley’s Will Trusts: ChD 1967

The court considered the rights of a beneficiary to participate in any profit which resulted where a trustee mixed trust money with his own money and then used it to purchase other property.

Ungoed-Thomas J
[1967] Ch 1179
England and Wales
Citing:
Explained awayIn re Hallett’s Estate; Knatchbull v Hallett CA 1880
Where a trustee of a policy used money received from others to make payment of premiums on an insurance policy, they would be entitled to a lien on the policy. Where an asset was acquired exclusively with trust money, the beneficiary could either . .

Cited by:
CitedFoskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
CitedFoskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .

Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 20 January 2022; Ref: scu.187412

Khosrowpour v Mackay: SCS 1 Jul 2016

Extra Division, Inner House – ‘Hamid Khosrowpour (the pursuer) seeks damages from the estate of his late mother-in-law (the deceased) on the basis that she failed to honour an agreement that she would leave her house to him in her will. The pursuer offers to prove that in 1989 she agreed to do this in return for payment of andpound;8,000, which allowed her to exercise her right to purchase the house then tenanted by her from the local authority; andpound;800 being referable to legal costs, etc. ‘

Lord Malcolm
[2016] ScotCS CSIH – 50
Bailii

Scotland, Land, Trusts

Updated: 19 January 2022; Ref: scu.566806

Daniel and Others v Tee and Others: ChD 1 Jul 2016

Claim for breach of trust raising questions concerning the duties of trustees, and in particular the extent to which professional solicitor trustees, who have no personal expertise in managing investments, may be said to have acted imprudently by relying on the advice of independent financial advisers which transpires to be incorrect.

Richard Spearman QC
[2016] EWHC 1538 (Ch)
Bailii
England and Wales

Trusts

Updated: 19 January 2022; Ref: scu.566756

Target Holdings Ltd v Redferns (A Firm) and Another: HL 21 Jul 1995

The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two intermediate purchaser companies, Panther and Kohli, with Kohli then selling to Crowngate at a stated price of andpound;2,000,000. Crowngate applied to Target for a loan to fund the purchase from Kohli based on this higher sale price, supported by a valuation of the property at andpound;2m. The solicitors also acted for Target and were aware of the chain arrangement that inflated the purchase price, but did not disclose it to Target which agreed to lend andpound;1.7m on the security of the property, of which about andpound;1.5m was to fund the price payable to Kohli.
The solicitors received the andpound;1.5m on 28 June 1989. The following day they paid most of it to Panther (not Kohli) and on 30 June Panther used part of those funds to complete its purchase from Mirage at the agreed price of andpound;775,000.
Held: A solicitor, when he receives the money, does so as agent of the lending institution and holds it as bare trustee for the lending institution. Such a trustee acting in breach of trust is liable only for damages flowing from the breach itself. Trustees are not liable for a beneficiary’s loss if that loss is not a consequence of the breach. Damages payable for money paid out in breach of trust may be reduced by inevitable losses which would have run in any event.
Lord Browne-Wilkinson held the basic rule to be: ‘that a trustee in breach of trust must restore or pay to the trust estate either the assets which have been lost to the estate by reason of the breach or compensation for such loss. Courts of Equity did not award damages but, acting in personam, ordered the defaulting trustee to restore the trust estate. If specific restitution of the trust property is not possible, then the liability of the trustee is to pay sufficient compensation to the trust estate to put it back to what it would have been had the breach not been committed.’ and ‘Equitable compensation for breach of trust is designed to achieve exactly what the word compensation suggests: to make good a loss in fact suffered by the beneficiaries and which, using hindsight and common sense, can be seen to have been caused by the breach.’

Lord Browne-Wilkinson
Gazette 06-Sep-1995, Times 21-Jul-1995, Independent 10-Aug-1995, [1996] 1 AC 421, [1995] UKHL 10, [1995] 3 All ER 785
Bailii
England and Wales
Citing:
Appeal FromTarget Holdings Ltd v Redferns and Another CA 24-Nov-1993
Solicitors were liable to mortgagees for mortgage monies which had been out by them paid in advance of the completion of the purchase which would allow the mortgagee’s loan to be charged. The basic liability of a trustee in breach of trust was not . .

Cited by:
CitedHulbert and Others v Avens and Another ChD 30-Jan-2003
The claimant sought damages for breach of trust against the defendant solicitors, who had acted as trustees under deeds of trust. They claimed for losses incurred by way of penalties for the late payment of capital gains tax. The defendants said . .
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 . .
CitedRegina v Preddy; Regina v Slade; Regina v Dhillon (Conjoined Appeals) HL 10-Jul-1996
The appellants were said to have made false mortgage applications. They appealed convictions for dishonestly obtaining property by deception.
Held: A chose in action created by an electronic bank transfer was not property which was capable of . .
CitedDon King Productions Inc v Warren and Others ChD 13-Apr-1998
Where partnership terms required benefit of all contracts to be assigned to the partnership, this included unassignable personal contracts which were to be held in trust for partnership, unless stated otherwise.
Lightman J said: ‘The existence . .
CitedBarbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
CitedBarbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
CitedHarris v Kent and Another ChD 14-Mar-2007
The claimant said the defendant had failed to complete his promise to arrange for the issue of shares in a company in return for a loan. The defendant denied the contract.
Held: It had been agreed to treat the claimant as a fifty per cent . .
CitedLloyds TSB Bank Plc v Markandan and Uddin (A Firm) ChD 14-Oct-2010
The claimant sought damages saying that the defendant firm of solicitors had failed to deal properly with a conveyance having paid across the mortgage funds to a non-existent firm of solicitors and without obtaining the appropriate documents at all. . .
CitedCook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
CitedAIB Group (UK) Plc v Mark Redler and Co Solicitors CA 8-Feb-2013
The defendant firm of solicitors had acted for the claimants under instructions to secure a first charge over the secured property. They failed to secure the discharge of the existing first charge, causing losses. AIB asserted breach of trust.
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 . .
See AlsoTarget Holdings Limited v Redferns (a Firm) Alexander Stevens and Company Limited (T/a Alexander Stevens Druce) CA 16-Oct-1998
. .
CitedPurrunsing v A’Court and Co (A Firm) and Another ChD 14-Apr-2016
The claimant had paid money for a property, but the seller was a fraudster and no money or title was recovered. The claimant sued both his conveyancers and the solicitors who had acted for the fraudster, in each case innocently. The defendants each . .
CitedRevenue and Customs v Joint Administrators of Lehman Brothers International (Europe) SC 13-Mar-2019
The Court was asked whether interest payable under rule 14.23(7) of the Insolvency Rules 2016 is ‘yearly interest’ within the meaning of section 874 of the Income Tax Act 2007. If so, the administrators must deduct income tax before paying interest . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Trusts, Damages

Updated: 17 January 2022; Ref: scu.89715

Mclaverty v Cassidy: LRA 21 Mar 2016

LRA Application for a Restriction – claim to a beneficial interest in Equity – extent of direct and indirect contributions to justify the claim – HELD – Sufficient evidence of direct contributions to substantiate such a claim – Sufficient evidence of common intention – Land Registry ordered to allow the application for restrictions

[2016] EWLandRA 2015 – 0420
Bailii

Registered Land, Trusts

Updated: 16 January 2022; Ref: scu.564465

Burrell and Sharman v Burrell, Shore, Tyrrell, etc: ChD 23 Feb 2005

Shares were appointed by trustees in the mistaken belief that they attracted business property relief from Inheritance tax. They sought to set aside the appointment.
Held: Mann J applied the rule in Stannard v Fisons Pensions Trust and declared invalid that part of the appointment which dealt with the shares.

The Honourable Mr Justice Mann
[2005] EWHC 245 (Ch), (2004-05) 7 ITELR 622, [2005] Pens LR 289, [2005] WTLR 313, [2005] BTC 8011, [2005] STC 569
Bailii
England and Wales
Citing:
CitedRe Hastings-Bass; Hastings v Inland Revenue CA 14-Mar-1974
Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the . .
CitedStannard v Fisons Pension Trust Limited CA 1991
Fisons had sold their fertiliser division to Norsk Hydro. Acting on advice of actuaries and thinking that the fund was in deficit, the trustees made a transfer to a new fund to provide for pensions of transferring employees in accordance with a . .
AppliedAbacus Trust Company (Isle of Man) Ltd and Another v National Society for the Prevention of Cruelty to Children ChD 17-Jul-2001
The claimants were beneficiaries, trustee and protector of a trust fund. In order to mitigate Capital Gains Tax liability they sought advice, and, following that advice, entered into a deed of gift in favour of the respondent charity. The deed . .

Cited by:
CitedPitt and Another v Holt and Others ChD 18-Jan-2010
The deceased had created a settlement in favour of his wife. He suffered serious injury and placed the damages in trust, but in a form which created an unnecessary liability to Inheritance Tax on his death. The wife’s mental health act receiver now . .
CitedFutter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .
CitedPitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .

Lists of cited by and citing cases may be incomplete.

Trusts, Inheritance Tax

Updated: 15 January 2022; Ref: scu.223296

Messrs Annand and Colquhoun, and Their Assignees, and Messrs Gibson and Balfour, Merchants, Edinburgh, and Their Trustee v Helen Chessels or Scott, and James Scott, Her Husband: HL 24 Mar 1775

Jus Mariti – Exclusion of Do.- Where a party conveyed his heritable and moveable estate to his daughter, in trust for behoof of herself and children, excluding her husband’s jus mariti in the event of his insolvency; Held that his creditors were not entitled to claim any of his moveable estate, the same being vested in the daughter; but that they were entitled to claim the rents of the heritable, and interest of the moveable estate up to the date of the husband’s insolvency, on which event his right of administration ceased, in terms of the express provision in the settlement.

[1775] UKHL 2 – Paton – 369
Bailii
Scotland

Insolvency, Trusts

Updated: 13 January 2022; Ref: scu.561831

James Cuthbert of Farnese v Anna Mackenzie or Paterson, and Richard Paterson, Her Husband, for His Interest: HL 13 Nov 1775

Deed – Tutory – Expiry of Do.- A deed contained a conveyance of subjects and effects to the wife, and a particular assignation of certain bonds therein, ‘to her, and her heirs and assignees,’ with provision, that after paying debts, the residue was to be enjoyed by the widow in liferent and child in fee, giving to the widow the power of distribution and division, and also nominating her tutrix to the children. Held, where the widow had recovered payment of one of the bonds, after the death of her husband, and after her second marriage, that she had only a liferent of the same, and that she could not recover payment, and validly discharge that bond, either in her own right, or as tutrix for her children, her office of tutrix expiring on her second marriage.

[1775] UKHL 2 – Paton – 377
Bailii
Scotland

Trusts

Updated: 13 January 2022; Ref: scu.561833

Charles Ward v Robert Hartpole: HL 1776

GH, a tenant for life in a marriage settlement, is thereby empowered to make leases for lives of lands in Ireland, at the best rent, without fine; and a power was also given, with the consent of trustees, to raise any sum of money. The trustees, in pursuance of the power, consent that G. H. should, by mortgaging all or any part of the lands, or in any other manner he should think fit, raise any sum of money not exceeding 5,000 l.

[1776] UKHL 3 – Bligh – 470, (1776) 3 Bligh 470
Bailii
Scotland

Trusts

Updated: 13 January 2022; Ref: scu.561838

Alexander Livingston, Esq v James Warrock: HL 29 Apr 1773

Entail – Jus Tertii. – In the entail of the estate of Westquarter, the question was, Whether James Livingston could sell the estate, under the following destination of the entail, ‘to and in favour of the said Countess, and James, Earl of Findlater, her husband, and longest liver of them two, for the Earl, his liferent use allenarly, and to James Livingston and the heirs male of his body, whom failing, to his heirs male whatsoever?’ James Livingston was, by express clause, prohibited from selling; and in a former appeal it was found he could not sell ( vide ante vol. II., p. 108.) This was a part of the estate which, from the state of the title, it was thought he could sell; and it having been sold, the next heir after his death brought a reduction. Held, that where the title of two parties is derived from one author, neither party can object to the right of the common author.

[1773] UKHL 6 – Paton – 790, (1773) 6 Paton 790
Bailii

Scotland, Trusts

Updated: 13 January 2022; Ref: scu.561822

Miss Anna Bruce v James Bruce Carstairs, Esq: HL 11 Jan 1773

Entail – Exercise of Power – Provision.- In an entail power was given to the heirs of entail to burden the estate with provisions to their husbands, wives, and children, ‘such as the estate could conveniently bear and allow.’ In 1748 the heir in possession burdened it with a provision of andpound;1000; and thereafter, in 1759, burdened it with a second bond of provision to the same party for andpound;1000. Held, in an action for payment of both bonds, that the heir in possession had not exceeded his powers, and that by the first bond his powers were not so exhausted as to prevent him from granting the second.

[1773] UKHL 2 – Paton – 329, (1773) 2 Paton 329
Bailii
Scotland

Trusts

Updated: 13 January 2022; Ref: scu.561813

Dr Andrew Heron v John Vining Heron: HL 31 Jan 1770

Succession – Deed – Implied Revocation.-
A father executed a settlement in form of an entail, in favour of his eldest son, and his heirs-male; whom failing, to his second son and his heirs-male, andc., but reserved power and faculty to himself to affect or burden the fee of the lands: Held that he was entitled to execute a subsequent disposition of the estate in favour of his second son, passing over the eldest son; reversing the judgment of the Court of Session.

[1770] UKHL 2 – Paton – 189, (1770) 2 Paton 189
Bailii
Scotland

Trusts

Updated: 13 January 2022; Ref: scu.561659

Sir John Douglass, Bart v Hugh Dalrymple, &C: HL 26 Jan 1770

Absolute Disposition – Trust.-
A party disponed certain lands to his agent, in order, as he stated, to qualify him to vote in the county election, but held no written obligation under his hand to redispone. Held that the absolute disposition, together with the law agent’s accounts, amounting to andpound;1400 due him, foreclosed all idea of trust, unless this were proved by writing under the trustee’s hand, in terms of the act 1696.

[1770] UKHL 2 – Paton – 187, (1770) 2 Paton 187
Bailii
Scotland

Trusts

Updated: 13 January 2022; Ref: scu.561660

Liden v Burton: CA 2 Mar 2016

Appeal against a decision deciding that a residential property was held on trust under the terms of which the first andpound;33,522 in equity is held for the respondent, Ms Liden. The judge held that Ms Liden acquired this interest as a result of a proprietary estoppel.

[2016] EWCA Civ 275
Bailii
England and Wales

Trusts

Updated: 13 January 2022; Ref: scu.561621

Blades 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.

Matthews M
[2016] EWHC 601 (Ch)
Bailii
England and Wales
Citing:
CitedHeugh 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 . .
CitedIn 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 . .

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, Costs

Updated: 12 January 2022; Ref: scu.561519

Lady Dowager Forbes v Lord James Forbes: HL 29 Jan 1765

Reduction – Error in Essentials of Agreement – Lifkrenter’s Powers and Liabilities – Bona Fide Consumption.-
Where the husband and wife, by marriage articles, conveyed the estate to themselves, and the survivor of them, for the wife’s liferent use allenarly, reserving power to grant provision to daughters to the extent of andpound;3000, and failing the husband exercising this power to the wife: Held, (1 st,) That though the husband had granted provisions to his daughters in exercise of this faculty, to the extent only of andpound;2000, that the wife was entitled, after his death, to execute an additional bond to the extent of andpound;1000. (2 nd), That where the liferentrix had entered into agreements restricting her liferent rights, through error in essentials, that she was still entitled to claim her rights as originally settled. (3 d), That bona fide percepti et consumpti was not pleadable, and the respondent accountable, for the whole rents, feuduties, and casualties since the date when her right accrued, reversing the judgment of the Court of Session: But, (4 th), That she was liable for the interest of the heritable debts on Puttachie and Pittendriech.

[1765] UKHL 2 – Paton – 84
Bailii
Scotland

Family, Trusts

Updated: 11 January 2022; Ref: scu.560603

Davis (As Trustee In Bankruptcy of Jackson) v Jackson and Another: ChD 7 Apr 2017

W and H were at all times estranged. W bought a house, but later, in order to get a mortgage, it was put in their joint names. They later expressly declared equal interests. At no time did H either contribute to or live in the house. On H’s insolvency the claimant receiver sought a share of the house. W argued that this would amount to an unjust enrichment.
Held: ‘the effect of the express declaration of trust in the Trust Deed and the TR1 form was to vest a beneficial interest in property in Mr. Jackson. It is inherent in the nature of a proprietary interest in land that the owner of the interest can sit back and do nothing and yet still be entitled to benefit from any appreciation in the capital value of the property. Accordingly, it cannot be said that, without more, a beneficial co-owner of land who shares in the increased value of the land has thereby been unjustly enriched. The retention of such benefit would not be unjust, because it is what the owner of an interest in property is entitled to.’ and ‘the correct apportionment of the proceeds of sale of the Property would be first to split the net proceeds equally between the Trustee and Mrs. Jackson, and then to give Mrs. Jackson additional credit for one half of all the payments she has made under the mortgage(s) from the date the Property was purchased to the date upon which the Property is sold. There should be no credits in respect of other payments which Mrs. Jackson has made, and no debits in respect of her occupation of the Property.’

Snowden J
[2017] EWHC 698 (Ch), [2017] WLR(D) 264
Bailii, WLRD
England and Wales

Land, Trusts

Updated: 10 January 2022; Ref: scu.581730

Head v Gould: ChD 1898

Kekewich J said: ‘On retiring from the trust and passing on the trust estate to their successors – and this is whether they appoint those successors or merely assign the property to the nominees of those who have the power of appointment – they are acting as trustees and it is equally incumbent on them in this ultimate act of office to fulfil the duty imposed upon them as at any other time.’

Kekewich J
[1898] 2 Ch 250
England and Wales

Trusts

Updated: 09 January 2022; Ref: scu.554413

Crociani and Others v Crociani and Others: PC 26 Nov 2014

(Court of Appeal of the Bailiwick of Jersey ) ‘The principal issue on this appeal is whether proceedings (‘the Proceedings’) brought in the Royal Court of Jersey by Cristiana Crociani (‘Cristiana’) and others (‘the respondents’) against her mother Edoarda Crociani (‘Mme Crociani’) and others (‘the appellants’) should be stayed on the ground that they were brought in breach of an exclusive jurisdiction clause contained in clause 12 of a Trust Deed made on 24 December 1987 (‘the 1987 Deed’). The determination of this issue involves resolving the following disputes, namely (i) (a) whether clause 12 of the 1987 Deed (‘clause 12′) is an exclusive jurisdiction clause, and (b) if so, in the events which have happened, whether it confers exclusive jurisdiction on the courts of Mauritius in respect of the claims made in the Proceedings, and (ii) if so, whether the Proceedings should be stayed. The appellants contend that the answer to these questions is yes, and the respondents argue that it is no.’

Lord Neuberger,Lord Mance, Lord Reed, Lord Hughes, Lord Hodge
[2014] UKPC 41
Bailii, Baiii Summary
England and Wales

Jurisdiction, Trusts

Updated: 08 January 2022; Ref: scu.539286

Thomas Finden v Charles Stephens, Wm Blandy, Ann Frances Quelch, Jemima Quelch, Edward Chambers, And Eliz Eleanor, His Wife, Joshua Brown, And Sarah, His Wife, And Ann Bushnell: 11 Dec 1846

Wish and desire that a particular person should be appointed manager of the testator’s estate for all purposes for which his trustees might have occasion for a manager, considered only as opinion and advice and not as a trust. Words of recommendatory are never construed as trusts, unless the subject be certain.

[1846] EngR 1202, (1846) 1 Coop T Cott 318, (1846) 47 ER 874
Commonlii
England and Wales

Trusts, Equity

Updated: 08 January 2022; Ref: scu.303097

Cooke v Head: CA 1972

Lording Denning said: ‘whenever two parties by their joint efforts acquire property to be used for their joint benefit, the courts may impose or impute a constructive or resulting trust. The legal owner is bound to hold the proper on trust for them both. This trust does not need any writing. It can be enforced by an order for sale, but in a proper case the sale can be postponed indefinitely. It applies to husband and wife, to engaged couples, and to man and mistress, and maybe to other relationships too.’

Lord Denning MR
[1972] 2 All ER 38, [1972] 1 WLR 518
England and Wales

Trusts

Updated: 08 January 2022; Ref: scu.188814

Anne, Countess of Ruglen; and William, Earl of March v Lord Archibald Hamilton, Et Alii: HL 21 Mar 1745

Tailzie. – Condition. – Provision to Heirs and Children.-
A power being given to the heir of entail in possession to burden the lands with provisions to younger children,-how far these provisions are effectual, upon such heir denuding (in virtue of a clause to that effect) in favour of another heir of entail? Found by the Court of Session that such heir of entail was not bound to relieve the lands of the burden. Not determined in the House of Lords.
Found that it was not a fair and proper exercise of the power, whereby the provision was to be effectual only against the heir of entail on whom the estate devolved, and not on the granter and his heirs.

[1745] UKHL 1 – Paton – 381
Bailii
Scotland

Trusts

Updated: 08 January 2022; Ref: scu.557093

Watson, Trustee For Heir of Hamilton of Redhouse, and The Other Creditors v Glass, and Other Children of The Deceased etc: HL 5 Dec 1744

Tailzie – Clause, Provision to Daughters – Obligation – ‘Heirs Female.’ – An entail bound the heirs of entail ‘to pay his daughters and heirs female,’ 10,000 merks, The entailer had only one daughter, and his son, who had succeeded under the entail, having fallen into debt, his trustee objected to pay this provision, on the ground that it was conceived only in favour of such daughter as should succeed as ‘heir female’ Held her entitled to the provision, and affirmed in the House of Lords.

[1744] UKHL 6 – Paton – 681
Bailii
Scotland

Trusts, Land

Updated: 08 January 2022; Ref: scu.556822

Barnes v Phillips: CA 23 Oct 2015

Appeal against an order holding and declaring that the parties held the beneficial shares in their jointly owned property as tenants in common in shares of 85% in favour of the respondent Denise Rosamund Phillips and 15% in favour of Mr. Barnes.

Longmore, Lloyd-Jones LJJ, Hayden J
[2015] EWCA Civ 1056
Bailii
England and Wales

Trusts, Land

Updated: 08 January 2022; Ref: scu.556784

Mattingley v Bugeja: ChD 14 Dec 2021

Case about an alleged ‘secret trust’ of real property, situated in England, under a will. The question is whether the devisee under the will, the defendant, holds the deceased’s interest in the property on trust so as to give the claimant, the deceased’s daughter, a 37.5% interest in the property (or, more accurately, in the deceased’s 71% beneficial interest in it). The daughter asserts this case. The defendant, her aunt, denies it.

HH Judge Davis-White QC,
(Sitting as a Judge of the High Court)
[2021] EWHC 3353 (Ch)
Bailii
England and Wales

Trusts, Wills and Probate

Updated: 08 January 2022; Ref: scu.670673

Wilkinson And Another v Godefroy: 17 Jan 1839

The court considered a claim for the recovery of money from a stakeholder to whom it had been entrusted, in which case a demand is necessary to throw upon the depositee a duty to repay.

[1839] EngR 396, (1839) 9 Ad and E 536, (1839) 112 ER 1315
Commonlii
Cited by:
CitedFreeman v Jeffries CExC 1868
(Court of Exchequer) The incoming tenant plaintiff had agreed to buy the outgoing tenant’s interest in a farm at a price determined by two valuers. He paid pounds 2,000 on account; the valuation took place; the plaintiff gave to the outgoing tenant . .
CitedFuller v Happy Shopper Markets Ltd and Another ChD 6-Mar-2001
A tenant complained to the landlord about his failure to repair. He ceased paying rent, and the landlord eventually distrained for rent by direct action.
Held: The tenant was unable to claim a legal set-off because there was no context of . .

Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 07 January 2022; Ref: scu.310928

Archibald Murray, Advocate, Et Alii, Trustees for The Creditors of William Scott Blair, of Blair v Hamilton Blair, Esq: HL 4 Apr 1739

Conjunct fee and liferent – A wife’s estate being disponed in her marriage contract ‘to the husband and wife, in conjunct fee and liferent, and to the sons of the marriage; which failing, to the heirs male of the body of her father; which failing, to the heirs female of the marriage; which failing, to the heirs male or female of her body of any other marriage; which failing, to the husband, and the heirs male of his body of any other marriage; which failing, to the wife’s heirs whatsoever;’-the fee found to be in the wife
Heir of provision – Found that the heir of the marriage may gratuitously dispose of the estate conveyed in the marriage contract.

[1739] UKHL 1 – Paton – 251, (1739) 1 Paton 251
Bailii
Scotland

Trusts

Updated: 06 January 2022; Ref: scu.554830

Elizabeth Moodie, Spinster, A Pauper v John Stewart of Burgh: HL 6 Feb 1730

Provision to heirs and children – The heir under a marriage contract may, during his father’s lifetime, renounce for himself and his successors all claims under the contract.
Idiotry – In a reduction of a deed ex capite furoris, after the death of the granter, a general allegation of idiotry not relevant.

[1730] UKHL 1 – Paton – 20, (1730) 1 Paton 20
Bailii
Scotland

Wills and Probate, Trusts

Updated: 05 January 2022; Ref: scu.554261

Archibald, Duke of Douglas v William, Lord Strathnaver: HL 25 Feb 1730

Tailzie. – Reparation – An heir of entail having made up titles in fee-simple to the entailed estate, and burdened it with debts, contrary to the provisions of the entail, which had not been recorded,-his representatives were found liable, at the instance of the next substitute, for reparation and damages, to the effect of disburdening the estate of those debts.

[1730] UKHL 1 – Paton – 32, (1730) 1 Paton 32
Bailii
Scotland

Trusts

Updated: 05 January 2022; Ref: scu.554260

David M’Culloch, of Pilton v Christian M’Culloch: HL 17 Apr 1727

Aliment by a mother to her son, if granted animo donandi or no – A father grants bond of provision to a younger son, in a certain sum, binding himself and his heirs to aliment him till 21, or to pay interest on the bond the mother marries a second husband, and in her marriage-contract stipulates a power of alimenting her son, out of her jointure from her first husband: in a process by the assignee of the younger son, against his eldest brother, for interest, as not being alimented by the father’s heirs, such interest is decreed, and the mother is found to have alimented the younger son gratis.
Litigious – The eldest son, pending this action, paid his mother’s second husband a sum for his younger brother’s aliment, but it is found that the discharge taken for that sum, being granted pendente processu, did not influence the cause.
Bond – Termly Penalty – A bond of provision by a father contains a clause of annual-rent, but no penalty on failure: in an action of damages for not punctual payment of interest, and expences thereon incurred, the defence that the bond contained no termly penalty is overruled.

[1727] UKHL Robertson – 611, (1727) Robertson 611
Bailii
Scotland

Trusts

Updated: 05 January 2022; Ref: scu.554240

Major Thomas Cochrane v Robert Lord Blantyre: HL 4 Apr 1726

Costs and Expences. –
Trust bonds granted conditionally, if the grantor should procure two commissions held by the grantee, of which he then executed resignations, are reduced upon the ground, that though the grantor held the said resignations in his hands, he did not procure the new commissions in virtue thereof, but in consequence of other means and considerations: but the Court having refused the pursuer his costs, the judgment is reversed, and it is ordered that the Court do case these costs to be taxed and ascertained and forthwith paid to the pursuer.
Appeal – The pursuer having craved that the bonds might be delivered up to him by the clerk, but the defender having stated that he meant to appeal, and the Court having ordered the bonds to remain in process, and not to be delivered up without a fresh warrant, their judgment is affirmed.

[1726] UKHL Robertson – 558, (1726) Robertson 558
Bailii
Scotland

Costs, Trusts

Updated: 05 January 2022; Ref: scu.554229

James Marquis of Clydesdale, An Infant of Tender Years, By James Duke of Hamilton and Brandon His Father v Thomas Earl of Dundonald Et E Contra: HL 2 Apr 1726

Minor – A minor, though with consent of his curators, could not gratuitously alter the settlements of his estate.
Death-bed – Neither could he gratuitously alter them on death-bed.
Tailzie – A tailzie executed in 1716, not registered in the Register of Tailzies, sustained in 1725 as a title on which to serve heir of provision.
Return – A clause of return to the grantor of a deed alter failure of heirs male, did not disable the heir in possession gratuitously to alter in favour of has daughters.
Destination simple – Nor did a simple destination to heirs male in several deeds hinder this.
Prescription. – Base Infeftment – Haereditas Facens. – A base infeftment is taken by a son on dispositions from his father in 1653 and 1656. In 1680 the father, after the son’s death, resigns these lands by a procuratory of resignation, and takes new charters from the crown, under which the lands are held till 1725, without making up titles under the son’s base infeftment. The objection of prescription is repelled. An objection that though the base infeftment contained lands in two counties it was only registered in one, is repelled. And it is found that these lands bring still in haereditate jacente of the son, a title to them could only be made up by a service to him.
Apparent Heir – One passing by an apparent heir three years in possession not liable to implement such apparent heir’s gratuitous bond of tailzie.
Construction – A deed is executed, by which the grantor obliges himself and his heirs male, and of tailzie, provision, andc. upon failure of heirs male of his own body, and heirs male of the descendants of his body, to resign the same for infeftments to his daughters and the heirs male of their bodies without division, andc.; in a competition between the heir male of the body of his eldest daughter, and a person claiming as heir male or the defendants of his body, the former is preferred.

[1726] UKHL Robertson – 564, (1726) Robertson 564
Bailii
Scotland

Trusts

Updated: 05 January 2022; Ref: scu.554228

Sir Alexander Maxwell of Monreith, Bart v Andrew Houston, Esq: HL 30 Apr 1725

Vitiation – An objection to a deed that it was erazed in substantialibus is repelled.
Vitious Intromission and Gestio pro Haerede – A person grants an entail of his estate to his son, and his heirs male whatsoever; with the burden of his debts; the son grants a back bond, in consideration of said entail to pay the father’s debts: after the death of the father and son, the daughters convey the estate real and personal of their father to a creditor, without making up titles by inventory or confirmation; and the creditor grants bond to protect them against what they had done, and from the debts of their father; the heir male of entail having got back the estate sues the said creditor for debts of the father as a vitious intrometter, in which he obtains decree; and the Court also find the moveable debts due to such intrometter to be extinguished: but their judgment is reversed 5 and the creditor is ordered to account for actual intromissions only.

[1725] UKHL Robertson – 539, (1725) Robertson 539
Bailii
Scotland

Trusts

Updated: 05 January 2022; Ref: scu.554120

James v Thomas: CA 23 Nov 2007

The claimant sought an interest in the property registered in the sole name of the respondent. The respondent had inherited a share in the property, and then bought out the interests of his siblings with support of a loan. The claimant had made no contribution to the purchase. She now appealed a finding that no constructive trust or estoppel arose from her long occupation and contributions and statements made, saying the court had no requirement to find a specific proportion to have been agreed.
Held: The appeal failed. While the judge may have erred in not recognising that an estoppel or constructive trust may arise in circumstances where the legal owner had assured the claimant that he or she has or will obtain a beneficial interest in the property, any error had not made a difference to the decision, and the facts found supported his judgment that no sufficiently clear assertion had been made.
Sir John Chadwick said: ‘It is said that, as a matter of law, the common intention may be formed at any time before, during or after the acquisition of the property; and that the common intention may be inferred from evidence of the parties’ conduct during the whole course of their dealings in relation to the property. For my part, I would accept each of those propositions of law
More pertinently, if the circumstances so demand, a constructive trust can arise some years after the property has been acquired by, and registered in the sole name of, one party who (at the time of the acquisition) was, beyond dispute, the sole beneficial owner: Gissing v Gissing [1971] AC 886, 901D-E, Bernard v Josephs [1982] Ch 391, 404E-F. But, as those cases show, in the absence of an express post-acquisition agreement, a court will be slow to infer from conduct alone that parties intended to vary existing beneficial interests established at the time of acquisition.’

Smith, Wilson LJJ, Sir John Chadwick
[2007] EWCA Civ 1212
Bailii
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 . .
CitedBernard v Josephs CA 30-Mar-1982
The court considered the division of proceeds of sale of a house bought by an unmarried couple.
Held: Where the trusts for which a property was purchased have been concluded, the house should be sold.
Griffiths LJ said: ‘the fact that . .
CitedLissimore v Downing ChD 31-Mar-2003
The claimant asserted an estoppel in land registered in the name of the defendant.
Held: Unspecific statements made by the defendant that ‘she would never want for anything’, or that ‘he would take care of her’, or that ‘he had looked after . .
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 . .
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 . .

Cited by:
CitedHopton v Miller ChD 31-Aug-2010
The parties had entered into partnership to open and run a restaurant, but without a formal agreement. They differed as to the values contributed by their respective efforts. After failures to disclose materials requested, the defendant we precluded . .
CitedWilliams v Lawrence and Another ChD 28-Jul-2011
The claimant, as trustee for the deceased’s insolvent estate, sought a declaration that a transfer of the deceased’s share in property made by the executors was void as being at an undervalue. The property was subject to a right of occupation in . .

Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 05 January 2022; Ref: scu.261561

James Hamilton of Dalzell, Esq; Ex Parte v James Hamilton Brother To William Hamilton, of Orbiestoun, Deceased, and The Creditors of The Said William Hamilton, and James His Son: HL 18 Apr 1724

Service of heirs – An estate being disponed to a father and sailing him to his eldest son, and the heirs male of his body, with other subsitutions; and the eldest son having survived the father was infeft thereon, and died afterwards without serving heir to him: the Court found the right to the estate not fully vested in the son without a service, but the judgment is reversed upon appeal.
Death-bed – The Court having found that death-bed could be pleaded by an heir cut off by two prior deeds, and by creditors, the judgment is reversed.
Did, contracting the sickness at the time of executing the deed, constitute death-beds?
Fiar absolute limited – A father grants an absolute dispsition to his son, which is not completed by infeftment or by making up schedules in term, thereof the son afterwards joins with the father in making two new settlements of the estate, and the father who still continued in possession grants and position to a third party, after the son’s death; the Court having found these posterior dispositions were not of prejudice to the son’s creditors, the judgment is reversed.

[1724] UKHL Robertson – 493, (1724) Robertson 493
Bailii

Scotland, Trusts

Updated: 05 January 2022; Ref: scu.553904

John Arratt, Esq v John Wilson of Baikie: HL 21 Feb 1722

Appeal – In an action of declarator of trust an interlocutor is pronounced, holding a defender as confessed upon an account of charge and discharge, given in by the pursuer, and he is ordered to denude. Afterwards upon the defender’s application, the Court allowed him ten days longer to give in his accounts, but before the expiration of these ten days, he brings his appeal against certain interlocutors, and amongst others, against the interlocutors holding him as confest; all which are specially affirmed by the House of Peers. After the determination of the first appeal, the defender applied to the Court to have liberty to give in his accounts in ten days, as allowed by the interlocutor before the appeal: but it was found that his right was extinguished, and that he must denude in terms of the decree affirmed by the House of Lords.

[1722] UKHL Robertson – 409, (1722) Robertson 409
Bailii

Scotland, Trusts

Updated: 05 January 2022; Ref: scu.553736

Alexander Lord Saltoun v William Fraser Esq; His Brother, Guardian and Trustee for Alexander Fraser: HL 16 Jun 1720

Parent and Child – Tutor and Pupil – Lord Saltoun having left 4000 l. payable at the first term after his decease, to the eldest son of the master of Saltoun, and failing him to the grantor’s heirs of entail; and having appointed an uncle of the pupil to be his tutor and curator with a salary during nonage with power to uplift the principal and interest, to employ the money in the purchase of lands, andc.: the pupil’s father, the heir and executor of the grantor of the provision, was not obliged to pay over the money to the uncle without security, but to pay it to the Court of Session, who were ordered to by it out in the manner directed by the grant.

[1720] UKHL Robertson – 312, (1720) Robertson 312
Bailii

Scotland, Trusts

Updated: 05 January 2022; Ref: scu.553647

John Campbell, of Calder, Esq v Ruth Pollock, Alias Campbell: HL 7 Jun 1720

Personal and transmissible – A sum appointed by a father to be paid to a son, his heirs, executors, or assignees, at a day certain, was transmissible by the son, though he died before that day.
Pactum Illicitum – An estate is fetded by a father upon his son and his heirs, reserving a life-rent to a certain amount, and by the son’s marriage contract the estate is declared to be of a certain annual value: two years after the marriage the son by a deed declares that the estate was not worth so much per annum, but that this was done to please the wife’s friends, and he grants bond to pay or allow the father to charge a sum upon the estate for provisions to his younger brothers and fitters, which should be in full of legitim: this was not contra fidem tabularum nuptialium.
Implied Discharge – After granting this bond, the fiar made a new disposition of the estate to the son, in same terms with the marriage-contract; but this was not a discharge of the bond, allowing the father to charge the estate with childrens’ provision
Fiar absolute limited – In a son’s marriage-contract it is covenanted, on the part of his father that lanas and hereditaments of a certain annual value were to be fettled and assured so as that the same should come to and be vested in the eldest son of the marriage, and other lands and hereditaments to remain to the son’s use, reserving the father’s life-rent of part: the son was fiar, and by his bond bound the heirs of the marriage.

[1720] UKHL Robertson – 324, (1720) Robertson 324
Bailii
Scotland

Trusts, Wills and Probate

Updated: 05 January 2022; Ref: scu.553650

The Commissioners and Trustees of The Forfeited States v Kenneth Mackenzie of Assint, A Minor, By Colonel Alexander Mackenzie, His Curator: HL 10 Feb 1720

Papist attainted of Treason – The Act 5 Geo. 1 c. 22. having limited a certain time for preferring exception, against a forfeiture, a person who presented his exceptions as protestant heir of a trustee could not, after expiration of the time limited reply as protestant heir of those for whom the trust was created.
Trust Estate held for a Papist – An estate held in trust for the Earl of Seaforth, a papist, was forfeited to the public by his attainder, and could not be cases up, by the protestant heir.

[1720] UKHL Robertson – 263, (1720) Robertson 263
Bailii

Scotland, Trusts

Updated: 05 January 2022; Ref: scu.553638

William Morison, of Preston Grange, Esq; v Sir William Scott of Thirlestayn, William Nisbet of Dirleton, and John Scott of Harden, A Minor, By His Guardian: HL 19 Feb 1720

Husband and Wife – A bond, with a clause of annualrent is granted blank in the creditor’s name, but delivered to a wife, during the subsistence of her marriage: the husband entails his real estate on the grantor of the bond, and also conveys to him all his personal estate, but was not privy to said bond; in a competition between the executor of the husband, and the executor of the wife, the husband’s executor is preferred to said bond: and the wife’s executor is ordered to refund what had been paid to her, in her widowhood.
General Disposition – A general disposition of a man’s personal estate, made in favour of one who had, without the husband’s knowledge, granted a bond to the wife did not release this bond.

[1720] UKHL Robertson – 269, (1720) Robertson 269
Bailii
Scotland

Family, Trusts

Updated: 05 January 2022; Ref: scu.553641

John Arratt Late Professor of Philosophy At St Andrews v John Wilson: HL 23 Mar 1719

Trust – Circumstances inferring the trust of a disposition, bearing to be heritable and irredeemable, and upon which infeftment had followed.
The trust being declared, the trustee is ordered to continue in possession, until it be redeemed, or proved that he was paid.
After several interlocutors, holding the appellant as confessed for not deponing, the appeal is brought that he might be reponed to his oath, but the interlocutors are affirmed.
Vis et metus – During the dependance of this process, the trustee having arrested the grantor of the disposition upon one of the debts paid by and assigned to such trustee, and while under caption having taken from the grantor a discharge and renunciation of all trust, and a disclaimer of his action of reduction: this discharge reduced upon the head of vis et metus; and the trustee is ordered to pay 60 l. Scots of expences, before he should be heard in the principal cause.

[1719] UKHL Robertson – 234, (1719) Robertson 234
Bailii
Scotland

Trusts

Updated: 04 January 2022; Ref: scu.553532