A power, to be validly executed, must be executed without any indirect object. The donee of the power must give the property which is the subject of it, as property, to the person to whom he affects to give it.
A created a power to appoint a fund between two of his daughters, H and M or to appoint it to one, in exclusion of the other, and subject to such restrictions, etc., as the donee of the power (A’s son) might think fit. The donee of the power executed a deed of appointment, which in form gave the whole of the fund to one of the sisters, N., but it was understood between the parties that N. was only to receive one moiety of the fund for her own use, and that she was to allow the other to accumulate subject to some future arrangement, and in pursuance of this understanding H. gave her brokers directions to invest, in the name of the donee of the power, of another brother, and of herself, one-half of the fund, and the interest thereon, to accumulate : Held, that this was, in equity, a fraudulent execution of the power, and that the deed of appointment as wholly void.
Lord Westbury LC stated the rule: ‘that the donee, the appointor under the power, shall, at the time of the exercise of that power, and for any purpose for which it is used, act with good faith and sincerity, and with an entire and single view to the real purpose and object of the power, and not for the purpose of accomplishing or carrying into effect any bye or sinister object (I mean sinister in the sense of its being beyond the purpose and intent of the power) which he may desire to effect in the exercise of the power.’
Lord Westbury LC
(1864) 11 HL Cas 32,  EngR 339, (1864) 11 HLC 32, (1864) 11 ER 1242, (1869) LR 5 Ch App 40
England and Wales
See Also – Lady Mary Topham v Duke Of Portland 20-Jun-1863
Commonlii The costs of an application to stay the execution of a decree pending an appeal to the House of Lords were to be paid by the applicant. . .
See Also – Lady Mary Topham v The Duke Of Portland 30-Jun-1862
The donee of a trust power cannot execute it for an object foreign to purposes for which it was intended, and therefore an ordinary power in a marriage settlement of appointment amongst the children cannot be made subservient to the accomplishment . .
Cited – Duke of Portland v Topham CA 1864
Commonlii The donee of a power of appointing portions among his younger children appointed a double share to a younger child without previous communication with him. But it appeared from the instructions for the . .
Cited – Futter 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 . .
Cited – Eclairs 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.
Updated: 07 May 2022; Ref: scu.282053