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 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

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

Re a Policy No 6402 of the Scottish Equitable Life Assurance Society: 1902

Mr Sanderson effected insurance on his own life ‘for the behoof’ of his sister-in-law, Miss Stiles. The policy moneys were payable to Miss Stiles or her personal representatives but the premiums were paid throughout by Mr Sanderson. The personal representatives of Mr Sanderson claimed the policy moneys from those of Miss Stiles to whom they had been paid.
Held: ‘Now, in the present case a policy was taken out by Mr. Sanderson a great many years ago, and the name of Miss Stiles appears in the policy as the person to whom the money is to be paid. The policy was never handed to her, and she is now dead, and the premiums were always paid, and were paid for many years after her death, by Sanderson. That, really, is a case of a man taking a policy out in the name of another, that other person being a sister of his wife, and, therefore not standing in any relation to him ‘that would meet the presumption,’ as Lord Eldon expressed it. It comes really to this: a purchase by one in the name of another with no other circumstances at all proved. Therefore, in my opinion, although the legal personal representative of the lady in this case would be the person entitled to receive the money at law and to give a receipt for it, in equity the money belongs to the legal personal representatives of Mr. Sanderson, who took out the policy.

Judges:

Joyce J

Citations:

[1902] 1 Ch 282

Jurisdiction:

England and Wales

Citing:

CitedDyer v Dyer 27-Nov-1988
Where property is purchased by one person in the name of another there is a presumption that a resulting trust is created: ‘The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold . .

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 . .
Lists of cited by and citing cases may be incomplete.

Insurance, Trusts

Updated: 12 May 2022; Ref: scu.187414

Murray v Murray’s Tutor: 1915

The date of a mortis causa trust disposition and settlement for the purposes of section 48 of the 1848 Act was the date of the truster’s death and not the date of its execution.

Citations:

1915 1 SLT 34

Statutes:

Entail Amendment (Scotland) Act 1848 47

Cited by:

CitedEarl of Balfour v Keeper of the Registers of Scotland and Others HL 6-Nov-2002
The applicant sought a declaration that he was the owner of land by virtue of the 1848 Act, claiming that a series of grants of liferent were ineffective to restrict the title transferred.
Held: Miller’s Trustees was to be applied in to the . .
DisapprovedLord Binning, Petitioner 1984
. .
Lists of cited by and citing cases may be incomplete.

Scotland, Trusts

Updated: 12 May 2022; Ref: scu.186367

Middleton, Petitioner: 1929

Section 47 applied to any trust deed dated after 1 August 1848.

Judges:

Lord Blackburn

Citations:

1929 SC 394

Statutes:

Entail Amendment (Scotland) Act 1848 47

Cited by:

CitedEarl of Balfour v Keeper of the Registers of Scotland and Others HL 6-Nov-2002
The applicant sought a declaration that he was the owner of land by virtue of the 1848 Act, claiming that a series of grants of liferent were ineffective to restrict the title transferred.
Held: Miller’s Trustees was to be applied in to the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Trusts

Updated: 12 May 2022; Ref: scu.186365

Lady Hood of Avalon v Mackinnon: 1909

Lady Hood made an appointment in favour of her elder daughter, in order to place her in the same position as her younger daughter to whom she had already made large appointments. But in doing so she (and her solicitor) had forgotten that she had, several years before, made a large appointment to the elder daughter on her marriage.
Held: the appointment to the elder daughter would be rescinded because Lady Hood, intending only to bring about equality between her daughters, was labouring under a mistake, since the effect of the appointment ‘was to bring about that which Lady Hood never intended and never contemplated.’

Judges:

Eve J

Citations:

[1909] 1 Ch 476

Cited by:

CitedAMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
CitedFender (Administrator of FG Collier and Sons Ltd) v National Westminster Bank Plc ChD 26-Sep-2008
The administrator sought declarations as to whether to treat the bank as a secured or unsecured creditor.
Held: The court directed the Administrator to recognise the Bank as a secured creditor, as if the Deed of Release had never been . .
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, Equity

Updated: 12 May 2022; Ref: scu.184587

Walker and others v Stones and others: CA 19 Jul 2000

Beneficiaries under a trust sought damages from a solicitor trustee, and the firm of which he was a partner.
Held: Where a trustee acted in breach of trust in a claimed belief that he was acting in the interests of the beneficiaries, but no reasonable trustee in his place could have that belief, then an allegation against him of dishonesty should proceed. A trusteeship is not part of the normal duties of a partner of a firm, and the firm is not vicariously liable for the acts of a partner in such trusts. The court rejected the ‘Robin Hood’ test of dishonesty (a person is only regarded as dishonest if he transgresses his own standard of honesty, even if that standard is contrary to that of reasonable and honest people) saying: ‘A person may in some cases act dishonestly, according to the ordinary use of language, even though he genuinely believes that his action is morally justified. The penniless thief, for example, who picks the pocket of the multi-millionaire is dishonest even though he genuinely considers that theft is morally justified as a fair redistribution of wealth and that he is not therefore being dishonest.’
‘a claimant is entitled to recover damages where:
(a) the claimant can establish that the defendant’s conduct has constituted a breach of some legal duty owed to him personally (whether under the law of contract, torts, trusts or any other branch of the law) AND
(b) on its assessment of the facts, the Court is satisfied that such breach of duty has caused him personal loss, separate and distinct from any loss that may have been occasioned to any corporate body in which he may be financially interested.
I further conclude that, if these two conditions are satisfied, the mere fact that the defendant’s conduct may also have given rise to a cause of action at the suit of a company in which the claimant is financially interested (whether directly as a shareholder or indirectly as, for example, a beneficiary under a trust) will not deprive the plaintiff of his cause of action; in such a case, a plea of double jeopardy will not avail the defendant.’

Judges:

Sir Christopher Slade

Citations:

Times 26-Sep-2000, Gazette 14-Sep-2000, [2000] Lloyds Rep PN 864

Jurisdiction:

England and Wales

Cited by:

CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Company, Legal Professions, Trusts, Equity, Vicarious Liability

Updated: 11 May 2022; Ref: scu.90254

Hawkesley v May: 1956

The trustees under a deed of settlement had a duty to inform a beneficiary, on his attaining 21, that he had an interest in the capital and income of the funds of the trust. Havers J said: ‘A fortiori, if the trustees did not hand over to the plaintiff on attaining 21 income to which he was entitled, it would be their duty to explain to him that he was entitled to call for and have the interest paid to him’.

Judges:

Havers J

Citations:

[1956] 1 QB 304

Trusts

Updated: 11 May 2022; Ref: scu.554412

Bank of New Zealand v New Zealand Guardian Trust Co Ltd: 1999

New Zealand Court of Appeal – Gault J said: ‘Recent cases show a trend in favour of analysis by reference to the scope of the duty, and enquire as to the risks against which there was a duty to protect the plaintiff. In South Australia Asset Management Corporation v York Montague Ltd [[1996] UKHL 10; 1997] AC 191 the House of Lords approached in this way a case of breach of a contractual duty of care while noting that the concurrent duty in tort was of the same scope. In the speech of Lord Hoffmann, with whom the other members agreed, it was said that the real question in such a case is the kind of loss in respect of which the duty is owed. To some extent this is merely to restate the question asking what losses is it reasonable that the law should require the wrongdoer to compensate, but it is a helpful analytical approach as illustrated in the instructive treatment in Todd, The Law of Torts (2ed 1997) para 20.3.’
Tipping J observed that while historically the law has tended to place emphasis on the legal characterisation of the relationship between the parties in delineating the remedies available for breach of an obligation, the nature of the duty which has been breached can often be more important, when considering issues of causation and remoteness, than the classification or historical source of the obligation. He identified three broad categories of breach by a trustee. First, there are breaches of duty leading directly to damage or to loss of trust property. Secondly, there are breaches involving an element of infidelity. Thirdly, there are breaches involving a lack of appropriate skill and care. He continued: ‘In the first kind of case the allegation is that a breach of duty by a trustee has directly caused loss of or damage to the trust property. The relief sought by the beneficiary is usually in such circumstances of a restitutionary kind. The trustee is asked to restore the trust estate, either in specie or by value. The policy of the law in these circumstances is generally to hold the trustee responsible if, but for the breach, the loss or damage would not have occurred. This approach is designed to encourage trustees to observe to the full their duties in relation to trust property by imposing on them a stringent concept of causation [ie a test by which a ‘but for’ connection is sufficient]. Questions of foreseeability and remoteness do not come into such an assessment.’

Judges:

Gault J, Tipping J

Citations:

[1999] 1 NZLR 664

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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts, Damages

Updated: 11 May 2022; Ref: scu.554201

Ex parte Adamson; In re Collie: CA 1878

The Court of Chancery never entertained a suit for damages occasioned by fraudulent conduct or for breach of trust, and that the suit was always for ‘an equitable debt, or liability in the nature of a debt’.

Judges:

James and Baggallay LJJ

Citations:

(1878) 8 Ch D 807

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 . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 11 May 2022; Ref: scu.554202

Magnus v Queensland National Bank: 1888

A custodial bank was liable to restore trust funds merely because it dissipated the trust funds in a manner which was not authorised. Lord Halsbury LC said: ‘we are not at liberty to speculate whether the same result might not have followed whether the bank had been guilty of that default or not. The bank have in fact been guilty of default. As a matter of fact they concurred in the money being handed to a person who had no authority, in my view of the facts, to receive it.’

Judges:

Lord Halsbury LC

Citations:

(1888) 37 Ch D

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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts

Updated: 11 May 2022; Ref: scu.553781

Leeds and Holbeck Building Society v Arthur and Cole: ChD 2001

A claim for breach of fiduciary duty by a solicitor as against his lender client, required that it be found that the solicitor ‘did not disclose matters which he admittedly ought to have done to the claimant, intentionally and consciously, knowing at the time that he should disclose them to the claimant.’

Judges:

Morland J

Citations:

[2001] Lloyd’s Rep PN 649

Jurisdiction:

England and Wales

Citing:

CitedMothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .

Cited by:

CitedMortgage Express v Abensons Solicitors (A Firm) ChD 20-Apr-2012
The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Trusts

Updated: 11 May 2022; Ref: scu.471576

Jaenicke v Schulz: 1924

Citations:

[1924] 4 DLR 488

Cited by:

CitedKetteringham and Another v Hardy ChD 3-Feb-2011
Two partners had together bought several properties for development, and now disputed the interests in one of them. One partneer had dies, and the refusal of development permission and the fall in property values left the land in negative equity. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts

Updated: 11 May 2022; Ref: scu.428469

In Re Rhodesia Goldfields Ltd: ChD 1910

Partridge, a director of the company who held some of its debenture stock, was facing a serious misfeasance claim which had not yet been resolved. Set-off was therefore not available.
Held: Payment of what was due to Partridge and his assignees was therefore deferred until the claim against him was resolved.
Swinfen Eady J said: ‘it would be a strange travesty of equity to hold that in distributing the fund Partridge was entitled to be paid at once all that was due to him out of the company’s money, and subsequently to find, after it had been established that he owed money to the fund, that the amount could not be recovered from him.’
He went on to discuss the rule in Cerry v Boultbee, saying: ‘The rule is of general application that where an estate is being administered by the Court, or where a fund is being distributed, a party cannot take anything out of the fund until he has made good what he owes to the fund . . a person entitled to participate in and bound to contribute to the same fund cannot receive the benefit without discharging the obligation.’

Judges:

Swinfen Eady J

Citations:

[1910] 1 Ch 239

Jurisdiction:

England and Wales

Citing:

AppliedCherry v Boultbee HL 22-Nov-1839
B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid.
Held: The liability to pay the debt and the right to receive the legacy had never tested . .

Cited by:

CitedBrazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .
CitedIn re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.

Trusts, Insolvency

Updated: 11 May 2022; Ref: scu.416575

Talbot v Marshfield: 15 Jun 1865

Trustees took counsel’s opinion as to whether they should exercise a discretionary power to advance part of their trust fund for the benefit of some of the cestuis que trust: and others of the cestuis que trust having filed a bill to restrain them from exercising such discretion, they took a second opinion as to their defence in the suit.
Upon summons for production by the Plaintiffs :
Held, that, the first case and opinion having reference to the dealings with the trust estate, all the cestuis que trust had a right to inspection, and the Court ordered them to be produced ; but that the second case and opinion being after suit instituted, the Plaintiffs had no right to production.

Citations:

[1865] EngR 589, (1865) 2 Dr and Sm 549, (1865) 62 ER 728

Links:

Commonlii

Citing:

See AlsoTalbot v Marshfield 17-Nov-1864
Payment into Curt. Discretionary Power in Trustees Over Fund, – Although the mere existence of a discretionary power in trustees over a fund affords no reason why the Court should not order payment of the fund into Court, unless such payment into . .

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, Litigation Practice, Legal Professions

Updated: 11 May 2022; Ref: scu.281501

McHardy and Sons (A Firm) v Warren and Another: CA 8 Apr 1994

A gift of the deposit to a couple can create an equal interest in the home for the spouses though the house is purchased in one name only. Lord Justice Dillon said: ‘To my mind it is irresistible conclusion that where a parent pays the deposit, either directly to the solicitors or to the bride and groom, it matters not which, on the purchase of their first matrimonial home, it is the intention of all three of them that the bride and groom should have equal interests in the matrimonial home, not interests measured by reference to the percentage half the deposit [bears] to the full price.’

Judges:

Lord Justice Dillon

Citations:

Times 08-Apr-1994, [1994] 2 FLR 338

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 10 May 2022; Ref: scu.83547

Melville and Others v Inland Revenue Commissioners: ChD 27 Jun 2000

A settlor created a common form discretionary trust save only that it included a right to require, after 90 days, the trustees to revest the settled fund in the settlor. A chargeable transfer was calculated at the reduction in value of his estate after the transfer. The clause meant that the sums remained ‘rights and interests of any description’ belonging to the settlor. The Revenue had not established that the statutory definition of property should not apply.

Citations:

Times 27-Jun-2000, Gazette 29-Jun-2000

Statutes:

Inheritance Tax Act 1984

Cited by:

Appeal fromMelville and others v Commissioners of Inland Revenue CA 31-Jul-2001
The taxpayer, to minimize his tax, put assets into a discretionary trust. The trust included the right for him to give 90 days notice requiring the assets to be transferred to him absolutely. He successfully argued that the assets were no longer . .
Lists of cited by and citing cases may be incomplete.

Trusts, Inheritance Tax, Capital Gains Tax

Updated: 10 May 2022; Ref: scu.83617

Houghton and Others v Fayers and Another: CA 9 Feb 2000

A party could be held liable as a constructive trustee in respect of moneys received in breach of trust, even if there was no finding of actual dishonesty against him. The requirements were to show the payment in breach of a fiduciary duty, the traceability of the funds, and the knowledge of the recipient that the funds were paid to him in breach of a fiduciary duty.

Citations:

Times 09-Feb-2000

Jurisdiction:

England and Wales

Trusts

Updated: 10 May 2022; Ref: scu.81486

Fuller v Evans and Others: ChD 27 Oct 1999

A settlor created a trust in favour of his wife and children with provision preventing them from making any disposition which would benefit him. The parties were divorced and he was ordered to pay maintenance to the children. The Trustees were concerned that in making payments to the children they would be reducing his liability.
Held: The trustees had to take that into account, but that need not stop a proper decision to fulfil the duties under the trust.

Citations:

Times 10-Nov-1999, Gazette 27-Oct-1999

Jurisdiction:

England and Wales

Trusts

Updated: 10 May 2022; Ref: scu.80705

Adam and Company International Trustees Ltd and Others v Theodore Goddard (A firm): ChD 17 Mar 2000

It was not possible for two trustees to retire, and be replaced by and leaving only one trustee, not being a trust corporation. The two trustees were not therefore discharged from the trust, and the solicitors who had advised them in the exercise had been negligent. A discharge of the second trustee could only be obtained via section 39.

Citations:

Times 17-Mar-2000, Gazette 30-Mar-2000

Statutes:

Trustee Act 1925 36 39

Jurisdiction:

England and Wales

Trusts

Updated: 10 May 2022; Ref: scu.77634

Yeatman v Yeatman: 1877

An action was brought by a residuary legatee against her mother-in-law’s executors and another member of the family, who it was alleged, had failed to account for partnership monies to the mother-in-law.
Held: A beneficiary of a trust could not sue in the name of the trustee merely because the trustee had refused to sue, but if in a case where the trustee refused to sue the court was satisfied that it would have given liberty to the trustee to bring proceedings even though there was no certainty that the proceedings would be successful, these would in general be special circumstances in which the beneficiary could sue in his own name.

Judges:

Hall VC

Citations:

(1877) 7 Ch D 201

Cited by:

CitedRoberts v Gill and Co and Another CA 15-Jul-2008
The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid . .
CitedRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Trusts

Updated: 10 May 2022; Ref: scu.279800

In re Bennett, Jones v Bennett: CA 1896

The deceased’s estate held mainly an unsecured interest-bearing loan to a firm of which he had been a partner. On his retirement the loan was repayable on demand if conditions for the continued solvency of the firm were not met. The court was asked whether the audit and stock-taking costs – which the executor and trustee deemed necessary to enable him to determine whether the conditions had been observed or the loan had become repayable – were to be charged against capital or income. It was held at first instance that expenses already incurred in connection with the first audit and stock-taking should be borne by capital; but that future expenses of that nature should be charged against income.
Held: The appeal succeeded.
Lord Justice Lindley said: ‘Why is this expense to be thrown upon the tenant for life? For whose benefit is it incurred? It is really for the benefit of the whole estate, though the practical effect of throwing it upon the whole estate will be that the tenant for life will lose the income of the sums expended.’
Lord Justice Kay said: ‘Then comes the question out of what should the expense of the examination come – out of capital or out of income? In the first place the object of the provisions in the agreement is to ensure repayment of the capital . . Surely [the provision for examination] is a provision which the testator deliberately introduced into this agreement for the purpose of making himself safe as to the repayment of this capital which he had not charged in terms upon the capital of the business. The expense is one in which the persons entitled to the capital ought to share: why then should it all be thrown upon the tenant for life?’
A L Smith LJ said: ‘Here the payment is one which the trustee, for the benefit of the tenant for life as well as of the remaindermen, may properly incur in order to see whether the 15,000l., of which the tenant for life receives the present income, and the persons entitled in remainder take the ultimate benefit, is safe or not. It is quite clear, in my judgment that the expenses of these audits are costs, charges and expenses incurred for the benefit of the whole estate, and therefore ought to come out of capital and not out of income.’

Judges:

Lindley LJ, Kay LJ, A L Smith LJ

Citations:

[1896] 1 Ch 778

Cited by:

CitedHM Revenue and Customs v Trustees of the Peter Clay Discretionary Trust CA 19-Dec-2008
The court was asked whether the Commissioners had been correct to disallow in a closure notice, the attribution in part to income in the year 2000-01 of expenses incurred by the trustees of a United Kingdom resident discretionary trust. The expenses . .
ApprovedCarver v Duncan HL 1985
The court considered whether expenses, premiums paid in respect of life assurance policies, and the fees of professional investment managers, were properly to be set against the capital or income of a trust.
Held: Lord Templeman said: . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Trusts

Updated: 10 May 2022; Ref: scu.279007

Caffrey v Darby: 1801

A fiduciary has a strict duty to account; equity imposes stringent liability on a fiduciary as a deterrent – pour encourager les autres. Lord Eldon LC said: ‘It would be very dangerous, though no fraud could be imputed to the trustees, and no kind of interest or benefit to themselves was looked to, to lay down this principle; that trustees might without any responsibility act, as these did: in eight years, within which time the whole money ought to have been paid, receiving only andpound;250; and taking no step as to the remainder. It would be an encouragement to bad motives; and it may be impossible to detect undue motives. If we get the length of neglect in not recovering this money by taking possession of the property, will they be relieved from that by the circumstance, that the loss has ultimately happened by something, that is not a direct and immediate consequence of their negligence: viz. the decision of a doubtful question of law? Even supposing they are right in saying, this was a very doubtful question, and they could not look to the possibility of its being so decided, yet, if they have been already guilty of negligence, they must be responsible for any loss in any way to that property: for whatever may be the immediate cause, the property would not have been in a situation to sustain that loss, if it had not been for their negligence. If they had taken possession of the property, it would not have been in his possession. If the loss had happened by fire, lightning, or any other accident, that would not be an excuse for them, if guilty of previous negligence. That was their fault.’

Judges:

Lord Eldon LC

Citations:

31 ER 1159, (1801) 6 Ves 488, [1775-1802] All ER Rep 507, [1801] EngR 484, (1801) 6 Ves Jun 488, (1801) 31 ER 1159

Links:

Commonlii

Citing:

See AlsoCaffrey v Darby 1789
As a general rule, executors must get in the property of the testator by all possible remedies. . .

Cited by:

CitedDevenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
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 . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 10 May 2022; Ref: scu.276921

Re Clore’s Settlement Trusts: ChD 1966

A 21 year old beneficiary of a substantial trust fund requested the trustees to apply for his benefit a sum (equal to about one-seventh of the fund) to a family charitable foundation. He would be entitled to the capital of the fund on attaining 30, in default of which the capital went to his issue if any and subject thereto to his sister and her family in trust.
Held: It was open to the trustees to make the advance: i) the improvement of the material situation of the beneficiary is not confined to his direct financial situation but could include the discharge of certain moral or social obligations particularly in relation to provision for family and dependants. And ii) the court has always recognized that a wealthy person has a moral obligation to make appropriate charitable donations and that: ‘a beneficiary under a settlement may indeed in many cases be reasonably entitled to regard himself as under a moral obligation to make donations towards charity. The nature and amount of those donations must depend upon all the circumstances, including the position in life of the beneficiary, the amount of the fund and the amount of his other resources. Once that proposition is accepted, it seems to me that it must lie within the scope of a power such as that contained in clause 8 of this settlement for the trustees to raise capital for the purpose of relieving the beneficiary of his moral obligation towards whatever charity he may have in mind. If the obligation is not to be met out of the capital of the trust fund, he would have to meet it out of his own pocket, if at all. Accordingly, the discharge of the obligation out of the capital of the trust fund does improve his material situation. The precise amount which the trustees can in any given case apply for this purpose must depend, I think, on the particular circumstances, and in this respect quantum is a necessary ingredient in the proper exercise of the power. It is difficult, for example, to see how the trustees under a power such as that in clause 8 could validly pay over the whole authorized two-thirds to charitable purposes. On the other hand, it is certainly not for the court to say precisely where the line is to be drawn.’ iii) rejecting the argument that direct material advantage could only be shown if, for example, the beneficiary was under such pressure, public or otherwise, that it would be detrimental to his material position if the donation were not made, that that was: ‘too narrow a view of what represents a benefit in a material sense to the beneficiary. Once the beneficiary regards the payment as a moral obligation, then it may be for his benefit to be relieved of it.’ Earlier he said: ‘Once he recognises this obligation the trustees may properly regard it as improving his material situation to discharge the obligation out of the trust fund, and as I have said, the proportion they propose to apply for this purpose is not excessive.’

Judges:

Pennycuick J

Citations:

[1966] 1 WLR 955, [1966] 2 All ER 272

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 . .
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, Charity

Updated: 10 May 2022; Ref: scu.237752

Public Trustee v Cooper: 2001

The court identified two jurisdictions for the court in construing trusts: (1) the jurisdiction to decide questions of construction as to the ambit of trustees’ powers, and (2) the jurisdiction to ‘bless’ a particular transaction proposed by the trustees in relation to which they are not surrendering their discretion to the court.

Judges:

Walker J

Citations:

[2001] WTLR 901

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

Updated: 10 May 2022; Ref: scu.237750

Lomax v Peter Dixon and Son Ltd: CA 1942

A substantial loan was made to be repaid on demand. An agreement was then made where the debtor issued to the creditor 680 loan notes of andpound;500 each, amounting in total to andpound;340,000 (a discount of 6%). The notes were to bear interest at a rate of about 5 per cent. 100 were to be repaid almost immediately and the rest over a period of 20 years. Each note was to be redeemed at a premium of 20% if the debtor’s profits reached a specified level. The issue was whether the discount and premium were capital or income for income tax purposes.
Held: In considering what might be a normal return, it was necessary to consider the circumstances of the transaction or the terms of the security and each case had to be considered on its own facts. Lord Greene discussed the ordinary issue of debentures by a limited company. If the credit of the company was good and the security ample then the issue could be at par at a reasonable rate of interest. If the credit and the security were exceptionally good then the issue could be made at a premium, which would be capital because the subscriber would be getting a good security. Alternatively such a company could issue its debentures at par with a lower rate of interest. If the credit or security were not good then the company could issue the debentures at par but with a high rate of interest, or issue them at a discount with a normal rate of interest, or issue them at par with a premium on redemption. However, the premium on redemption and the premium on issue were the expression of the risk in terms of capital rather than in the terms of interest. Whether income tax was payable depended on the method chosen by the company. The discount and premium in that appeal were capital.

Judges:

Lord Greene MR

Citations:

[1943] 2 All ER 255, [1943] KB 671, [1942] 25 TC 353

Cited by:

CitedInland Revenue Commissioners v Sema Group Pension Scheme Trustees CA 19-Dec-2002
The taxpayers appealed a notice under section 703(3) to counteract the tax advantage received by them from a share buy-back scheme. The scheme was an approved pension scheme, under which the quoted company agreed to buy back its own shares.
CitedOmega Group Pension Scheme v Inland Revenue SCIT 22-Jun-2001
SCIT TRANSACTIONS IN SECURITIES – share buy-backs – trustees of exempt approved scheme purchased shares in Powergen which subsequently bought back the shares – trustees claimed tax credit – whether the scheme . .
Lists of cited by and citing cases may be incomplete.

Trusts, Income Tax

Updated: 10 May 2022; Ref: scu.235781

Young v Young: 1984

Citations:

[1984] FLR 375

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 . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 10 May 2022; Ref: scu.230911

Williams v Scott: PC 1900

(New South Wales) The Board was asked whether an abstract of title was good because it appeared from the abstract that there had been a purchase by a trustee without full consent or release from the beneficiaries.
Held: The purchase of trust property by a trustee is not permitted except with the consent of the court or pursuant to an express power: ‘It is important to remember upon whom the onus of proof falls. It ought not to be assumed, in the absence of evidence to the contrary, that the transaction was a proper one, and that the cestui que trusts were informed of all necessary matters. The burthen of proof that the transaction was a righteous one rests upon the trustee, who is bound to produce clear affirmative proof that the parties were at arm’s length; that the cestui que trusts had full information upon all material facts; and that, having this information, they agreed to and adopted what was done.’ and ‘It is clear undisputed law that a trustee for the sale of property cannot himself be the purchaser of it – no person can at the same time fill the two opposite characters of vendor and purchaser.’

Judges:

Sir Ford North

Citations:

[1900] AC 499

Jurisdiction:

Australia

Cited by:

CitedIngram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 09 May 2022; Ref: scu.223775

Re Coomber; Coomber v Coomber: CA 2 Jan 1911

The Coomber family sold beer in Battersea. Coomber Senior had increasingly relied on his second son. After his father’s death, the second son continued to run the business. His mother shortly afterwards assigned both the licence and the premises to him. After the mother’s death the older son asked the court to transfer the business and its premises brought back into her estate, saying that, as manager for his mother, the second son was in a fiduciary relationship with her and, as such,was presumed to have used undue influence in dealing with his beneficiary.
Held: The fact that the mother was following what she took to have been her late husband’s wishes was adequate ground for finding for the second son. Also the mother had received adequate legal advice. It was impossible to leap from the label ‘fiduciary relationship’ to the conclusion that all the incidents of an express trusteeship applied. All sorts of relations could be called fiduciary relations by reason of elements of confidence, trust and dependence.
Fletcher Moulton LJ: ‘It is said that the son was the manager of the stores and therefore was in a fiduciary relationship to his mother. This illustrates in a most striking form the danger of trusting to verbal formulae. Fiduciary relations are of many different types; they extend from the relation of myself to an errand boy who is bound to bring me back my change up to the most intimate and confidential relations which can possibly exist between one party and another where the one is wholly in the hands of the other because of his infinite trust in him. All these are cases of fiduciary relations, and the Courts have again and again, in cases where there has been a fiduciary relation, interfered and set aside acts which, between persons in a wholly independent position, would have been perfectly valid. Thereupon in some minds there arises the idea that if there is any fiduciary relation whatever any of these types of interference is warranted by it. They conclude that every kind of fiduciary relation justifies every kind of interference. Of course that is absurd. The nature of the fiduciary relation must be such that it justifies the interference. … In my opinion there was absolutely nothing in the fiduciary relations of the mother and the son with regard to this house which in any way affected this transaction.’ and
‘All that is necessary is that some independent person, free from any taint of the relationship, or of the consideration of interest which would affect the act, should put clearly before the person what are the nature and the consequences of the act. It is for adult persons of competent mind to decide whether they will do an act, and I do not think that independent and competent advice means independent and competent approval. It simply means that the advice shall be removed entirely from the suspected atmosphere; and that from the clear language of an independent mind, they should know precisely what they are doing.’

Judges:

Fletcher Moulton LJ

Citations:

[1911] 1 Ch 723

Citing:

Appeal fromRe Coomber, Coomber v Coomber ChD 1911
A father had been assisted in his business by his second son. After the father’s death, the mother transferred the business assets to that second son. After her death, the elder son sought the transfer of those assets back into her estate, saying . .

Cited by:

Appealed toRe Coomber, Coomber v Coomber ChD 1911
A father had been assisted in his business by his second son. After the father’s death, the mother transferred the business assets to that second son. After her death, the elder son sought the transfer of those assets back into her estate, saying . .
CitedMurad and Another v Al Saraj and Another CA 29-Jul-2005
An account of profits is available without proof of loss, and the onus is upon the defaulting party to show that profits are not ones for which he should account . .
CitedHalton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .
CitedRolls-Royce Power Engineering Plc and Another v Ricardo Consulting Engineers Ltd TCC 2-Dec-2003
. .
Lists of cited by and citing cases may be incomplete.

Trusts, Undue Influence

Updated: 09 May 2022; Ref: scu.222820

Re Hotchkiss Trusts: 1869

‘In this case, if the words of the will had been the same as the words in In re Potter’s Trust, I should, without expressing any opinion of my own, simply have followed the decision of Vice-Chancellor Sir R.Malins in that case; because I do not think it seemly that two branches of a Court of co-ordinate jurisdiction should be found coming to contrary decisions upon similar instruments, and encouraging as it were a race, by inducing persons who wish for one construction to go to one court and those who wish for another construction to go to another. I should simply have affirmed the Vice-Chancellor’s decision, with the intimation of my wish that the whole matter should be brought before a Court of Appeal.’

Judges:

Sir William James V-C

Citations:

(1869) 8 Eq 643

Jurisdiction:

England and Wales

Trusts, Litigation Practice

Updated: 09 May 2022; Ref: scu.191952

Davie v Davies’ Trustees: OHCS 1900

A trust disposition which had confined the pursuer to a liferent for as long as the trustees exercised the discretion which they had been given to retain the capital was struck at by section 48 of the Act.

Judges:

Lord Low

Citations:

(1900) 8 SLT 28

Statutes:

Entail Amendment (Scotland) Act 1848 47

Jurisdiction:

Scotland

Cited by:

CitedEarl of Balfour v Keeper of the Registers of Scotland and Others HL 6-Nov-2002
The applicant sought a declaration that he was the owner of land by virtue of the 1848 Act, claiming that a series of grants of liferent were ineffective to restrict the title transferred.
Held: Miller’s Trustees was to be applied in to the . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 09 May 2022; Ref: scu.186366

King v Hutton: CA 1900

‘The most compelling indicator for or against a trusteeship of an agent’s receipts is the nature of the account agreed to be kept by the agent with his principal. If, after each individual transaction or group of related transactions he effects for his principal, he is to pay over the proceeds in his hands – minus any commission payable – then he will ordinarily be a trustee. But where an agent is effecting both sales and purchases for his principal, or is discharging liabilities for his principal out of monies received, and he keeps a running account with periodic settlement dates at which he pays over the balance of account (if any), he will, ordinarily, be a debtor only – the debtor-only conclusion being reinforced if there are present in the accounts (1) set offs, other than for commission, or (2) interest charges on credits and debits’.

Citations:

[1900] 2 QB 504, [1900] 83 LT 68

Jurisdiction:

England and Wales

Cited by:

CitedAluminium Industrie Vaassen B V v Romalpa Aluminium Ltd ChD 11-Feb-1975
The plaintiffs sold aluminium to the defendant and by a clause in the contract retained their title in the materials sold until payment was received. The purchaser went into insolvent receivership, and the seller sought recovery of the equipment and . .
CitedDP Mann and others v Coutts and Co ComC 16-Sep-2003
The claimants were involved in litigation, They took certain steps on the understanding that the respondents had had deposited with them substantial sums in accounts under binding authorities. The bank had written a letter upon which they claim they . .
Lists of cited by and citing cases may be incomplete.

Trusts, Agency

Updated: 08 May 2022; Ref: scu.181239

Midland Bank v Wyatt: ChD 1995

Mr Wyatt settled his family home on trust for the benefit of his wife and daughter, so as to immunise it from any business failure he might suffer. When his business did fail, he sought to protect his house from creditors by relying on the settlement earlier executed, of which his wife was a trustee. It emerged that Mr Wyatt’s wife had had no knowledge of the effect or nature of the declaration she signed as ‘trustee’.
Held: There was a sham, and the declaration of trust was void and could not be enforced.
Where a trustee goes along with a settlor neither knowing nor caring what he or she is signing, this constitutes sufficient intention to create a sham.

Citations:

[1997] 1 BCLC 242, [1995] 1 FLR 697

Jurisdiction:

England and Wales

Trusts

Updated: 08 May 2022; Ref: scu.556769

Re Astor’s Settlement Trusts; Astor v Scholfield: ChD 1952

Roxberg J said: ‘if the purposes are valid trusts, the settlors have retained no beneficial interest and could not initiate [proceedings].’ One cannot generally have a trust without a beneficiary or, at least a person who can move the court to enforce the trust: ‘This seems to me to be good equity and good sense.’

Judges:

Roxberg J

Citations:

[1952] Ch 534, [1952] 1 All ER 1067, [1952] 1 TLR 1003

Jurisdiction:

England and Wales

Trusts

Updated: 08 May 2022; Ref: scu.556770

James Roscoe (Bolton) Ltd v Winder: 1915

A company sold its business under an agreement containing a promise by the purchaser to collect on behalf of the vendor the amount of the book debts owed to it at the date of the agreement. From the sums collected, the purchaser paid andpound;455 into his general bank account, but he failed to account for the money to the vendor and made drawings from the account which reduced it at one stage to andpound;25. He later made payments into the account from an unrelated source, and died with a balance in his account of andpound;358, to which the vendor claimed to be beneficially entitled.
Held: The maximum which the vendor was entitled to trace was andpound;25, representing the lowest sum to which the balance on the account had fallen between the payment of the andpound;455 into the account and the purchaser’s death, on the ground that at that date of the lowest balance the purchaser must have denuded the account of all the trust moneys except to the extent of andpound;25.

Judges:

Sargant J

Citations:

[1915] 1 Ch 62

Jurisdiction:

England and Wales

Trusts

Updated: 08 May 2022; Ref: scu.556804

Williams v Barton: 1927

A trustee, who recommended that his co-trustees use stockbrokers who gave him a commission, held the commission on trust for the trust.

Judges:

Russell J

Citations:

[1927] 2 Ch 9

Jurisdiction:

England and Wales

Cited by:

CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 08 May 2022; Ref: scu.551507

In re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research: ChD 1964

Ungoed-Thomas J said: ‘The more serious the allegation the more cogent is the evidence required to overcome the unliklihood of what is alleged and thus to prove it.’

Judges:

Ungoed-Thomas J

Citations:

[1964] 1 WLR 451, [1964] 1 All ER 771

Jurisdiction:

England and Wales

Cited by:

CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
CitedAli Haider v Syed ChD 19-Dec-2013
It was alleged that the signature on the deceased’s will was a forgery.
Held: Given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant, and cogent proof . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts, Evidence

Updated: 08 May 2022; Ref: scu.519362

In re Bourke’s Will Trusts: ChD 1980

The 1938 will of a testator was at issue. He died in 1943. The trusts included a life interest for the testator’s widow and, on her death without issue (which happened in 1971), residue was given to the testator’s three half-siblings ‘or their heirs and surviving issue’.
Held: The heirs were to be ascertained in accordance with pre-1926 law by virtue of section 132 of the 1925 Act. It was accepted that ‘issue’ (construed to mean children in the context) were to be ascertained in accordance with the law at the date of the testator’s death in 1943 (though it was not suggested that there were any illegitimate children born after 1969 who might have made a claim). Also, the classes of heirs and issue were in each case to be ascertained at the death of each half-sibling (1958 and 1969 respectively), and not at the date of the widow’s death in 1971.

Judges:

Slade J

Citations:

[1980] 1 WLR 539

Statutes:

Law of Property Act 1925 132

Jurisdiction:

England and Wales

Cited by:

CitedRe Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 08 May 2022; Ref: scu.519436

Re Halstead’s Will Trusts: ChD 1937

The term ‘benefit’ in a trust instrument is to be construed widely. To exercise a power of advancement by settling on an object of the power and his wife and children, property in which he has otherwise only a life interest was an ‘application’.

Judges:

Farwell J

Citations:

[1937] 2 All ER 570

Jurisdiction:

England and Wales

Cited by:

CitedBarclays Bank Trust Company Ltd v Revenue and Customs CA 14-Jul-2011
Parents had each left a share of their estate to the bank on trusts for their disabled son. The revenue said that the gifts were caught by and taxable by virtue of sections 5, 49 and 89 of the 1984 Act, the residuary estates of both parents forming . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 08 May 2022; Ref: scu.441864

In Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners: ChD 1959

Whether Trust was void for perpetuity

Judges:

Danckwerts J

Citations:

[1959] 1 Ch 699

Jurisdiction:

England and Wales

Cited by:

At First InstanceIn Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners HL 8-Oct-1962
The trustees proposed establishing a new trust in respect of the share of an estate to which an infant beneficiary had a contingent entitlement. A portion of the trust fund would be allocated to the new trust.
Held: This was a lawful exercise . .
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 . .
See AlsoIn Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners CA 1961
. .
See Alsoin Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners CA 2-Jan-1961
. .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 07 May 2022; Ref: scu.402928

Wadeson v Duke: 1846

After decree the Trustees should not lay out money on mortgage without the previous approbation of the Court

Citations:

[1846] EngR 231, (1846) 1 Coop T Cott 160, (1846) 47 ER 794

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 07 May 2022; Ref: scu.302126

Re Pfrimmer: 1936

(Manitoba Court of Appeal) Mr Pfrimmer in his will in 1930, disposed of a house on various trusts. On his death, the question arose as to whether the carrying into effect of the testamentary trusts was prevented by two documents (one called a ‘Declaration of Trust’) that he had executed five years before he made his will. The documents related to the same house and, if they created a valid trust in respect of it, the provisions in the will could not take effect. The question was whether they did create such a trust, or whether they took effect only as a testamentary disposition.
Held: The documents showed that the land subject to them was to remain in Mr Pfrimmer’s disposition to do with what he liked and that it was not until his death that they were intended to become operative; and that they were intended to take the place of a testamentary disposition in order to avoid probate expense and succession duties ‘and not to create an irrevocable trust by a binding transfer of the properties.’ Trueman JA, giving the judgment of the court, said: ‘The law is clear that to give validity to a declaration of trust of property, it is necessary that the donor or grantor should have absolutely parted with his interest in the property, and have effectually put such interest beyond his own reach. . Whatever may be the form of an instrument, if the person executing it intends that it shall not take effect until after his death, and it is dependent upon the death for its vigour and effect, it is not a trust. ,br />Thus, in Malim v. Keighley, 2 Ves. Jun. 333, at p. 335, 30 E.R. 659, the Master of the Rolls said:– ‘I will lay down the rule as broad as this; wherever any person gives property, and points out the object, the property and the way in which it shall go, that does create a trust, unless he shews clearly, that his desire expressed is to be controlled by the party; and that he shall have an option to defeat it.”

Citations:

[1936] 2 DLR 460

Jurisdiction:

Canada

Cited by:

CitedChopra v Bindra CA 19-Mar-2009
The parties sought to have declared the effect of a deed of trust under which the on the death of either co-owner, the survivor became entitled to the entirety of the proceeds of sale absolutely. The gift was defective as self defeating. The judge . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 07 May 2022; Ref: scu.323754

Sugden v Crossland: 18 Feb 1856

A sum of money paid to a trustee to persuade him to retire in favour of the payee was to be ‘treated as a part of the trust fund’.

Judges:

Sir William Page Wood V-C

Citations:

[1856] EngR 276, (1856) 3 Sm and G 192, (1856) 65 ER 620

Links:

Commonlii

Cited by:

CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 07 May 2022; Ref: scu.291031

Birley v Birley: CA 12 Mar 1858

An absolute appointment was made to an object of a power, under a prior ‘understanding’ between the appointor and appointee, to hold in ‘In trust ‘ for persons, some of whom were objects and some not.
Held: The whole was void.

Judges:

Sir John Romilly MR

Citations:

[1858] EngR 441, (1858) 25 Beav 299, (1858) 53 ER 651

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: 07 May 2022; Ref: scu.288912

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 of any particular fancies or inclinations which the donee of the power may have as to the profession in life which a child may choose to adopt, nor can it be exercised in such a mode as to prevent a child marrying a particular person.
An appointment was made to A. (an object of a power) with trusts in favor of B (another object), but intended to accomplish a purpose not warranted by the power. Held, that it could not be treated as an absolute appointment of B. discharged of the void purpose. An appointment, under a previous agreement, that the appointee will deal with the appointed fund in a manner foreign to the purposes for which the power was intended is void, and so is such an appointment where the agreement is subsequent, if accomplished by the inevitable influence possessed by the appointor over the appointee. A parent, having by his settlement an exclusive power of appointment of a fund to his children, was desirous of preventing a daughter marrying a particular gentleman. For that purpose, he appointed part of the fund to his son, who, about a month afterWards, settled it on discretionary trusts in favor of the daughter, the object being to prevent that marriage. Held, that this was one transaction, that the object aimed at was foreign to the purposes for which the power was intended, and that the appointment was altogether void in equity.

Citations:

[1862] EngR 870, (1862) 31 Beav 525, (1862) 54 ER 1242

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See alsoLady 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 AlsoDuke 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 . .
See AlsoThe Duke Of Portland And Others v Lady Mary E Topham And Others HL 6-Apr-1864
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 . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 07 May 2022; Ref: scu.287036

The Duke Of Portland And Others v Lady Mary E Topham And Others: HL 6 Apr 1864

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.’

Judges:

Lord Westbury LC

Citations:

(1864) 11 HL Cas 32, [1864] EngR 339, (1864) 11 HLC 32, (1864) 11 ER 1242, (1869) LR 5 Ch App 40

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See AlsoLady 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 AlsoLady 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 . .
CitedDuke 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 by:

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 . .
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

Updated: 07 May 2022; Ref: scu.282053

In re Sharp: 1845

(Year?) Cotton LJ discussed a power to invest ‘upon the debentures or securities of any railway or other public company’ and said:- ‘It is true that he refers to railway companies, but he also adds, ‘or any other public company’; and I think it would be a wrong interpretation of the will to say that those words, because they follow the reference to railway companies, must be confined to companies similar to them or to companies incorporated in the same way as railway companies are, namely, by special Act of Parliament.’

Judges:

Cotton LJ

Citations:

[1845] ChD 286

Cited by:

CitedNestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 07 May 2022; Ref: scu.268063

Robinson v Robinson: CA 1851

The trustee defendants had been directed by their testator to realise his investments and invest the proceeds in one or other of two forms of investment; but the trustees had delayed the realisation of the testator’s investments. When they actually sold they realised more than they would have realised if they had sold immediately after the testator’s death, but less than if they had sold immediately after the testator’s death and had thereupon invested the proceeds in one, rather than the other, of the two authorised forms of investment. The plaintiff sought to charge the trustees for what they would have received if they had followed that course of realisation and investment which in the event would have been the most favourable to the beneficiaries.
Held: The claim was rejected. Cranworth LJ said: ‘Where a man is bound by covenants to do one of two things, and does neither, there in an action by the covenantee, the measure of damage is in general the loss arising by reason of the covenantor having failed to do that which is least, not that which is most, beneficial to the covenantee: and the same principle may be applied by analogy to the case of a trustee failing to invest in either of two modes equally lawful by the terms of the trust.’

Judges:

Cranworth LJ

Citations:

(1851) 1 De GM and G 247, [1851] EngR 994, (1851) 1 De G M and G 247, (1851) 42 ER 547

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedNestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 07 May 2022; Ref: scu.268064

Re GKN Bolts and Nuts Ltd etc Works Sports and Social Club: ChD 1982

There was a sports and social club associated with GKN, whose members were all employees of GKN. The main issue in the case was whether the club had ceased to exist. But one subsidiary issue was whether a meeting had been validly convened. The club rules required 14 days’ notice to be given, but in fact only three days’ notice were given. Notice of the meeting was posted in the company’s canteen, to which all the members had access. However, the requirement of 14 days’ notice had hardly ever been followed. Seven or three days’ notice were not unusual and there was no evidence that anyone had ever objected to short notice. The subject matter of the meeting was to discuss the sale of the club’s sports ground The court also considered the status of associate members of a club, who obtained that status merely by signing a vistors book.
Held: The rules did not make such associate members members properly. Despite the short notice, the resolution to sell the sports ground was validly passed: ‘with the prospect that a sale would bring some money to each member of the club, it seems obvious that news of the meeting would speedily reach all, if not quite all, of the members of the club.’
However, the same meeting (convened by the same notice) also passed resolutions altering the way in which the proceeds of sale of the sports ground would be distributed among the members, and Megarry V-C held that insufficient notice of that business had been given, with the consequence that those resolutions were invalid.
Megarry V-C said: ‘As is common in club cases, there are many obscurities and uncertainties, and some difficulty in the law. In such cases, the court usually has to take a broad sword to the problems, and eschew an unduly meticulous examination of the rules and resolutions. I am not, of course, saying that these should be ignored; but usually there is a considerable degree of informality in the conduct of the affairs of such clubs, and I think that the courts have to be ready to allow general concepts of reasonableness, fairness and common sense to be given more than their usual weight when confronted by claims to the contrary which appear to be based on any strict interpretation and rigid application of the letter of the rules. In other words, allowance must be made for some play in the joints.’

Judges:

Megarry J VC

Citations:

[1982] 1 WLR 774

Jurisdiction:

England and Wales

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 . .
CitedSpeechley and Others v Allott and Others CA 10-Mar-2014
The parties disputed the management of a social club. The club owned a bowling green, and bowling members sought to restrain its closure. The appellants now said that the court should not have found at first instance that a meeting had validly . .
Lists of cited by and citing cases may be incomplete.

Trusts, Company

Updated: 07 May 2022; Ref: scu.245262

Re Recher’s Will Trusts: ChD 1972

The deceased gave a share of the residue, to ‘The Anti-Vivisection Society, 76 Victoria Street, London S.W.1.’ She died in 1962 and her husband died in 1968. Until the end of 1956 a non-charitable unincorporated society, known as the ‘London and Provincial Anti-Vivisection Society’ had carried on its activities at 76 Victoria Street, but in 1957 it was amalgamated with a larger non-charitable unincorporated society, known as ‘The National Anti-Vivisection Society’ of 27 Palace Street, London S.W.1. and the Victoria Street premises were closed down. It changed its name to ‘The National Anti-Vivisection Society (incorporating the London and Provincial Antivivisection Society).’ In 1963 the National Anti-Vivisection Society Ltd was incorporated and the assets were vested in it. It was not a charity. The gift had to be construed as a gift to the London and Provincial Anti-Vivisection Society, 76 Victoria Street, and not to the larger combined society. It was not to be construed as a gift in trust for the purposes of the Society. It could have taken effect as a legacy to the members of the society beneficially, as an accretion to the funds which constituted the subject matter of the contract by which the members had bound themselves inter se. But since the Society had been dissolved, the gift could not be construed as a gift to the members of a different association and they therefore failed. A trust for non-charitable purposes, as a distinct from a trust for individuals, was clearly void because there is no beneficiary.
But: ‘It does not, however, follow that persons cannot band themselves together as an association or society, pay subscriptions and validly devote their sums in pursuit of some lawful non-charitable purpose. An obvious example is a members’ social club. . . Such an association is bound . . to have some sort of constitution; that is to say, the rights and liabilities of the members of the association will inevitably depend on some form of contract inter se, usually evidenced by a set of rules .. As and when a member paid his subscription to the association, he would be subjecting his money to the disposition and expenditure thereof laid down by the rules . . The resultant situation, on analysis, is that the . . society represented an organisation of individuals bound together by a contract under which their subscriptions became, as it were, mandated towards a certain type of expenditure … Just as the two parties to a bi-partite bargain can vary or terminate their contract by mutual assent, so it must follow that the life members, ordinary members and associate members of the . . society could, at any moment of time, by unanimous agreement (or by majority vote, if the rules so prescribe), vary or terminate their multi-partite contract. There is no private trust or trust for charitable purposes or other trust to hinder the process.’

Judges:

Brightman J

Citations:

[1972] Ch 529

Jurisdiction:

England and Wales

Citing:

ApprovedNeville 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: 07 May 2022; Ref: scu.245266

Browne v Browne: CA 1989

The court considered under what circumstances money held in trust for a party could be included within assets to be considered in an application for ancillary relief in family proceedings.
Held: The question is more appropriately expressed as whether the spouse has ‘immediate access to the funds’ of the trust than ‘effective control’ over it.

Judges:

Butler-Sloss LJ

Citations:

[1989] 1 FLR 291

Cited by:

CitedCharman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
CitedThomas v Thomas CA 2-May-1995
H was a wealthy businessman, but, as a member of Lloyds, he had been required to charge the family home to secure potential liabilities. Also, the company of which he was managing director had always paid out only smaller sums by way of dividends, . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 May 2022; Ref: scu.236581

Passee v Passee: 1988

Citations:

[1988] 1 FLR 263

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 . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 07 May 2022; Ref: scu.230912

Palestine Solidarity and Another, Regina (on The Application of) v Secretary of State for Housing, Communities and Local Government: SC 29 Apr 2020

The court considered the extent on trustees of an obligation to invest in an ethical manner.
Lord Carnwath said that trustees: ‘may take non-financial considerations into account – ‘provided that doing so would not involve significant risk of financial detriment to the scheme and where they have good reason to think that scheme members would support their decision.”

Judges:

Lady Hale, Lord Wilson, Lord Carnwath, Lady Arden, Lord Sales

Citations:

[2020] UKSC 16, [2020] Pens LR 20, [2020] ICR 1013, [2020] 1 WLR 1774, [2020] HRLR 15, [2020] 4 All ER 347

Links:

Bailii, Bailii Summary

Jurisdiction:

England and Wales

Cited by:

CitedButler-Sloss and Others v The Charity Commission for England and Wales and Another ChD 29-Apr-2022
Principles allowing Ethical Investment by Trustees
Should charities, whose principal purposes are environmental protection and improvement and the relief of poverty, be able to adopt an investment policy that excludes many potential investments because the trustees consider that they conflict with . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Trusts

Updated: 07 May 2022; Ref: scu.650486

In re W (EEM): 1971

It would be for the ‘benefit’ of the patient to exercise the powers conferred by section 95(1) of the 1983 Act so as to enable there to be done something which the patient would have wished to do if he had been able to act for himself.

Judges:

Mr Justice Ungoed-Thomas

Citations:

[1971] Ch 123

Jurisdiction:

England and Wales

Cited by:

CitedJemma Trust Company Ltd v Kippax Beaumont Lewis (A Firm) and others CA 11-Mar-2005
The defendant firm of solicitors, acting as executors had sought to arrange matters to minimise Inheritance Tax. A deed of variation was put in place after approval by the court, but the CTO interpreted the deed differently. The executors believed . .
Lists of cited by and citing cases may be incomplete.

Health, Trusts

Updated: 06 May 2022; Ref: scu.223513

Phipps v Boardman: CA 1965

Affirmed

Judges:

Lord Denning MR

Citations:

[1965] Ch 992

Jurisdiction:

England and Wales

Citing:

Appeal fromPhipps v Boardman ChD 1964
Agents of certain trustees had purchased shares, in circumstances where they only had that opportunity because they were agents.
Held: The shares were held beneficially for the trust. . .

Cited by:

Appeal fromPhipps v Boardman HL 3-Nov-1966
A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to . .
CitedOBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 May 2022; Ref: scu.223010

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 appointment that its purpose as to half of the double share was that it should be held in trust, and the income accumulated during the life of the appointee and twenty-one years afterwards, or until the successor to the title of the appointor should direct the half of the double share and accumulations to be paid to another child who had been excluded by reason of an intended marriage disliked by the appointor. In the absence of such direction the half of the double share and accumulations were intended to be paid to the appointee. The appointee soon after the appointment executed a deed settling the moiety accordingly.
Held: 1. That if the appointment and subsequent settlement could be held to be one transaction, the provisions for accumulation and for the control of the appointor’s succesor in titie over the appointed fund could not he rejected as mere excess so as to give the moiety to the excluded child. 2. That the purpose of the appointment as to the moiety, although uncommunicated vitiated it as to that portion, but as to that portion only.
Turner LJ said that he took it ‘to be clear, that no person, however innocent he may himself be, can, where there is no valuable consideration, derive a title under the fraud of another’.

Judges:

Turner LJ

Citations:

[1863] EngR 1051, (1863) 1 De G J and S 517, (1863) 46 ER 205

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See AlsoLady 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 . .
See AlsoLady 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. . .

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. . .
CitedThe Duke Of Portland And Others v Lady Mary E Topham And Others HL 6-Apr-1864
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 . .
CitedSoutzos v Asombang and Others ChD 21-Jun-2011
The claimant had obtained a freezing order against the defendants. His claim having been dismissed, the court now considered if and what damages should be paid under the cross-undertaking he had given.
Held: Setting out and applying the . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 May 2022; Ref: scu.222826

Ex parte Forder: CA 1881

A sale of part of the property of the bankrupt was made by a trustee in bankruptcy to two buyers, one of whom was the trustee’s under-age son. The contract was not binding on the son for his minority, and the sale was also at an undervalue.
Held: The case was decided on that ground, but on a broader view. Lord Selbourne LC said: ‘Many authorities had laid down emphatically, not only with regard to trustees generally, but with regard to assignees in bankruptcy in particular, that they could not exercise the power of sale given to them for the benefit of the creditors directly or indirectly for the benefit of themselves or of anyone so connected with them as to stand in a position more advantageous than an ordinary purchaser.’ The sale being to the trustee’s son, who was still a minor and so not bound by the contract, and: ‘How under such circumstances the bankrupt’s estate will be bound by the contract it was impossible to conceive. At any rate, the circumstances threw on the trustee the burden of showing that it was a proper contract.’

Judges:

Lord Selbourne LC

Citations:

(1881) 25 Sol Journ 720

Jurisdiction:

England and Wales

Cited by:

CitedNewgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 May 2022; Ref: scu.220737

In re Dale dec’d: ChD 1994

The taking of a benefit on the strength of a binding engagement is enough to create a constructive trust. For this doctrine to apply there must be a contract at law. For the doctrine of mutual wills to apply it is not necessary that the second testator take a personal direct benefit under the other will.

Judges:

Morritt J

Citations:

[1994] Ch 31

Jurisdiction:

England and Wales

Citing:

CitedGray v Perpetual Trustee Co Ltd PC 12-Jun-1928
The Board considered a claim that wills had been mutual. Viscount Haldane said: ‘The case before us is one in which the evidence of an agreement, apart from that of making the wills in question, is so lacking that they are unable to come to the . .
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’. . .

Cited by:

CitedGoodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
CitedWalters v Olins CA 4-Jul-2008
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
CitedHealey v Brown ChD 25-Apr-2002
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: . .
CitedCharles and Others v Fraser ChD 11-Aug-2010
The claimants said that the last will had purported to revoke and earlier but mutual will. They said that the executors should be required to implement the revoked will. The wills had been made by elderly sisters. The wills were in similar terms, . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 06 May 2022; Ref: scu.214596

Coulthard v Disco Mix Club Ltd: CA 2000

The expression ‘constructive trustee’ creates a trap.This ‘type of trust is merely the creation by the court . . to meet the wrongdoing alleged: there is no real trust and usually no chance of a proprietary remedy.’

Citations:

[2000] 1 WLR 707

Jurisdiction:

England and Wales

Cited by:

CitedDubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 May 2022; Ref: scu.193892

Sinclair v Brougham: HL 1914

An insolvent building society had, outside its powers, run a banking business. The House considered the competing claims of the unadvanced shareholders of the building society’s intra vires business, members of the society who had not been granted mortgages, and the depositors of its ultra vires banking business. The claims of all other creditors had, by agreement, been met. It was accepted that contracts entered into for the purposes of that ultra vires business, which by the time of bankruptcy had become the society’s predominant business, were, so far as the society was concerned, void. The issue was the significance of that fact for the priority of claims of the shareholders and the depositors to the funds held by the Liquidators. In the High Court and the Court of Appeal the unadvanced shareholders prevailed: the depositors’ contracts were held void, and therefore would only be honoured to the extent that all prior valid claims had been met.
Held: The competing claims for priority of both the unadvanced shareholders and the depositors were declined. The available funds were to be shared pro rata, an outcome that had not been considered until raised by Viscount Haldane during argument.
Viscount Haldane approached the question by assuming that specific tracing was not possible and, on that basis, concluding that pro rata sharing was the way to apportion the monies: ‘The depositors can, in my opinion, only claim the depreciated assets which represent their money, and nothing more. It follows that the principle to be adopted in the distribution must be apportionment on the footing that depreciation and loss are to be borne pro rata. I am, of course, assuming in saying this that specific tracing is not now possible.
What is there must be apportioned accordingly among those whose money it represents, and the question of how the apportionment should be made is one of fact. In the present case the working out of a proper apportionment based on the principle of tracing not only would involve immense labour but would be unlikely to end in any reliable result. The records necessary for tracing the dealings with the funds do not exist. We have therefore, treating the question as one of presumption of fact, to give such a direction to the liquidator as is calculated to bring about a result consistent with the principles already laid down.

Judges:

Viscount Haldane

Citations:

[1914] AC 398, [1914-15] All ER 622

Jurisdiction:

England and Wales

Cited by:

ExplainedIn re Diplock’s estate CA 1948
After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
Held: The origin of the equitable rules of tracing were . .
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 . .
Lists of cited by and citing cases may be incomplete.

Trusts, Insolvency, Equity

Updated: 06 May 2022; Ref: scu.187413

Rosco v Winder: 1915

Citations:

[1915] 1 Ch 62

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 . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 May 2022; Ref: scu.187419

Sekhon v Alissa: 1989

A house had been conveyed into the daughter’s name despite her mother’s contribution to the purchase price.
Held: In the absence of evidence that the mother’s contribution had been by way of gift or a personal loan, the arrangement created a presumption of a resulting trust.

Judges:

Hoffmann J

Citations:

[1989] 2 FLR 94

Jurisdiction:

England and Wales

Trusts

Updated: 06 May 2022; Ref: scu.556805

Conin; Re: 1977

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

Judges:

Walton J

Citations:

[1977] 2 All ER 720, [1979] Ch 16

Jurisdiction:

England and Wales

Wills and Probate, Trusts

Updated: 06 May 2022; Ref: scu.556389

In re Buckton’s Settlement Trusts: 1964

Citations:

[1964] Ch 497

Jurisdiction:

England and Wales

Cited by:

CitedFutter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 May 2022; Ref: scu.509124

Blathwayt v Baron Cawley: HL 1975

A condition to take effect if the tenant for life ‘be or become a Roman Catholic’ was not void for uncertainty. The tests for ascertaining whether a condition precedent and a condition subsequent are void for uncertainty are different, the latter being stricter than the former.
Lord Wilberforce said: ‘I do not doubt that conceptions of public policy should move with the times and that widely accepted treaties and statutes may point the direction in which such conceptions, as applied by the courts, ought to move.’ . .
and went on to refer to ‘the right, which I conceive judges have, to judge the degree of certainty with some measure of common sense and knowledge and without excessive astuteness to discover ambiguities.’

Judges:

Lord Cross of Chelsea, Lord Cross of Chelsea, Lord Wilberforce

Citations:

[1976] AC 397, [1975] 3 All ER 625

Jurisdiction:

England and Wales

Trusts

Updated: 06 May 2022; Ref: scu.510143

In re Hubbard’s Will Trusts: 1962

The rule that a gift may fail on the failure of a prior interest upon which it is dependent and which is void for remoteness is a ‘rule of invalidity by contagion with another and invalid limitation’.

Citations:

[1962] Ch 275

Jurisdiction:

England and Wales

Cited by:

CitedFutter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 May 2022; Ref: scu.509123

In Re Collard’s Will Trusts: 1961

Buckley J said: ‘In the present case, the farm has recently been valued by qualified valuers at andpound;20,000, and an advance of andpound;20,000 would be within the financial limit of the power of the advancement which the trustees at present have, having regard to the value of the elder daughter’s settled share. So far as I can see, there would be nothing wrong in the trustees making an advance in cash to her son of andpound;20,000 and subsequently selling the farm to him for andpound;20,000. In those circumstances it seems to me that the Court need not insist on that process having gone through; and that the right view is that the trustees have power to convey the farm to the son and treat that conveyance as an advancement to him of its market value.

Judges:

Buckley J

Citations:

[1961] 1 Ch 293

Jurisdiction:

England and Wales

Cited by:

CitedIn Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners HL 8-Oct-1962
The trustees proposed establishing a new trust in respect of the share of an estate to which an infant beneficiary had a contingent entitlement. A portion of the trust fund would be allocated to the new trust.
Held: This was a lawful exercise . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 May 2022; Ref: scu.509242

In Re Druce’s Settlement Trusts: ChD 1962

Russell J discussed the difficulties of trustees when making an application on behalf of a beneficiary of the trust: ‘The application was made not by a beneficiary but by the trustees. This is a disadvantage, particularly in a case such as the present, where the interests of the persons for whom the court is concerned are not exactly the same as those of some respondent. It means that there is no counsel whose sole task is to protect and support those interests. Where the trustees make the application their counsel is there to argue for the acceptance of the scheme: but at the same time his duty and that of the trustees is to be the watchdog for (for example) unborn interests. Let me say at once that Mr Brightman for the trustees, while recognising the disadvantage, overcame admirably the duality of his position. To change the metaphor, his performance as touch judge was not marred by the fact that he started in the line-out, and I was grateful for his assistance. Nevertheless, the disadvantages of this duality exist. Counsel for the applicant trustees must have an instinctive reaction against a criticism from the bench, designed to safeguard or benefit those unborn interests, which would be lacking in a respondent trustee, an instinctive tendency to be against alteration of the scheme for the approval of which he is applying. Moreover, if the criticism be in fact unsound, it is likely to take longer for the judge to be dissuaded from it because of that very duality. There are, of course, cases of applications to vary beneficial interests where it is necessary and proper that the trustees should make the application, notwithstanding the disadvantage I have mentioned. This case was one of them, the trustees being satisfied that the scheme was beneficial to their beneficiaries and no beneficiary being willing to make the application. But, in general, the trustees should not be the applicants in applications to vary beneficial trusts, unless they are satisfied that the proposals are beneficial to the persons interested and have a good prospect of being approved by the court, and further, that if they do not make the application no one will. In particular, it would not be right if it became the general practice for such applications to be made by the trustees upon the supposition that should the application fail it will be more probable (though not, of course, certain) that the costs of all parties will be directed to be met out of the trust funds.’

Judges:

Russell J

Citations:

[1962] 1 WLR 363

Jurisdiction:

England and Wales

Cited by:

CitedWright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Trusts

Updated: 06 May 2022; Ref: scu.448124

In Re Peruvian Railway Construction Co Ltd: 1915

William Alt died insolvent in 1908. His estate included shares in the company, which went into voluntary liquidation in 1914. Alt owed the company andpound;2,633.
Held: In the distribution of the company’s surplus assets the liquidator could retain out of the fund, on account of Alt’s debt, only the amount of the dividend on the debt. Sargant J distinguished other cited authorities as having ‘an entire absence of the special feature present in Cherry v Boultbee and in the case before me, namely, the insolvency of the original debtor before the right of retainer or quasi set-off had first arisen.’ He restated the Cherry v Boultbee rule: ‘where a person entitled to participate in a fund is also bound to make a contribution in aid of that fund, he cannot be allowed so to participate unless and until he has fulfilled his duty to contribute.’

Judges:

Sargant J

Citations:

[1915] 2 Ch 144

Citing:

ExplainedCherry v Boultbee HL 22-Nov-1839
B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid.
Held: The liability to pay the debt and the right to receive the legacy had never tested . .

Cited by:

CitedIn re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.

Trusts, Insolvency

Updated: 06 May 2022; Ref: scu.416572

Francis Harmore and Elizabeth His Wife v Doble Brook, Birkenhead Collins, John Hamlin, Tho Hamlin An Infant, By The Said John His Guardian, And George Banister: 1674

Articles in Marriage to pay 500 pounds with his Daughter by such a ime, and to secure to her all his real and Personal estate when he died; and afterwards he devised all his personal Estate to another, which being contrary to the Articles, that Agreement was deemed to be performed.

Citations:

[1674] EngR 26, (1674) Fin H 183, (1674) 23 ER 101 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Family, Trusts

Updated: 06 May 2022; Ref: scu.406025

Legg v Goldwire: 10 Nov 1736

By Lord Chancellor Talbot – Where articles are entered into before marriage, and a settlement is made after marriage different from those articles (as if by articles the estate was to be in strict settlement, and by the settlement the husband is made tenant in tail whereby he hath it in his power to bar the issue), this Court will set up the articles against the settlement; but where both articles and settlement are previous to the marriage, at a time when all parties are at liberty, the settlement differing from the articles will be taken as a new agreement between them and shall control the articles. And although, in the case of West v Errissey . . afterwards in the House of Lords, in 1727, the articles were made to control the settlement made before marriage, yet that resolution no way contradicts the general rule; for in that case the settlement was expressly mentioned to be made in pursuance and performance of the said marriage articles, whereby the intent appeared to be still the same as it was at the making of the articles.

Judges:

Talbot LC

Citations:

[1736] EngR 81, (1736) Cas T Talbot 20, (1736) 25 ER 637

Links:

Commonlii

Equity, Trusts, Family

Updated: 05 May 2022; Ref: scu.386774

Fielding v Fielding: CA 1977

The wife, following divorce, applied for a lump sum order to be made against the husband but then she added a claim under s.17 of the Act of 1882 for a declaration that she had an interest, for which the husband should account to her, in the assets of two public houses which together they had managed.
Held: The registrar and, on first appeal, the circuit judge had been wrong to concentrate – at great length – on the claim under the Act of 1882 referable to strict property rights. Ormrod LJ said that it was ‘of very little value to proceed under the [Act of] 1882 after divorce’ and the 1973 Act ‘provides an elastic method of deciding what is a fair order’.

Judges:

Ormrod LJ

Citations:

[1977] 1 WLR 1146

Statutes:

Matrimonial Causes Act 1973, Married Women’s Property Act 1882 18

Jurisdiction:

England and Wales

Cited by:

CitedMiller Smith v Miller Smith CA 2-Dec-2009
The married couple owned a property as tenants in common. The husband had moved out and, anticipating divorce proceedings, sought an order for the sale of the house citing his inability to sustain the very considerable mortgage payments. The wife . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 05 May 2022; Ref: scu.381720

The Marquis of Cholmondeley v Lord Clinton: 1819

Where A, in a conveyance to uses, settled an estate for life on himself, remainder in tail to his issue, with an ultimate limitation to the heirs of SR in fee; and at the time of the settlement A was himself the right heir of SR.
Held: that this ultimate limitation was void, and that the estate after the death of A without issue, descended on his heirs general. Held, also, that it was not competent to go into the intention of the settlor, apparent from the recital, in order to explain the words of this limitation, they being words of plain and well-known import.

Citations:

[1819] EngR 158, (1819) 2 B and A 625, (1819) 106 ER 494

Links:

Commonlii

Citing:

See AlsoEarl Cholmondeley v Lord Clinton 1789
A solicitor even though he may not be continuing to act for a particular client, must never be permitted to disclose, to the injury of that client, matters of which he had learned whilst so employed. . .
See AlsoThe Earl of Cholmondeley v Lord Clinton 17-Jul-1813
. .
See AlsoEarl Cholmondeley And Ann Seymour Damer v Lord Clinton And Others 16-Jan-1815
A solicitor for one of the parties in a suit cannot become the solicitor for the opposite party, though he is separated from the partnership which jointly were so employed on the other side, and the remaining partner still continues so employed, and . .
See AlsoEarl Cholmondeley v Lord Clinton 3-Feb-1815
An Attorney or solicitor cannot give up his client, and act for the opposite party, in any suit between them. . .
See AlsoMarquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton 18-Dec-1816
. .
See AlsoMarquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton, Sir Lawrence Palk, And Others 24-Dec-1816
. .
See AlsoMarquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton, Francis Drake, Ambrose St John, John Inglett Fortescue, Sir Lawrence Palk (Deceased), William Seymour, And Others 28-Jun-1817
. .

Cited by:

See AlsoMarquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton etc 8-Aug-1820
. .
See AlsoMarquis of Cholmondeley v Lord Clinton HL 15-Jun-1821
Equity follows the law . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 05 May 2022; Ref: scu.331361

Stone v Godfrey: 10 Dec 1853

The father of a female infant, who was himself tenant by the curtesy, but whose right was regarded as doubtful, became next friend of his daughter in a suit against the trustee of his late wife’s real estates, in which a decree was obtained for a partition, and conveyance of the infant’s portion to the father, until she attained twenty one, and then to the use of the infant in fee. The father received the rents and profits, and duly accounted to his daughter in respect of them ; but, on her marriage, filed a bill against her and her husband, for a declaration that his daughter’s interest in the estate might be declared, subject to his estate by curtesy. Held, that the Plaintiff, having relinquished what was regarded as a doubtful right, by an arrangement under which he derived a benefit, was not entitled to relief. Semble -A wife, entitled to real estate sested in trustees, who, under an erroneous impression of her rights, paid the rents to other persons, died, without having received the rents, leaving her husband and one daughter her surviving that; the husband was tenant by the curtesy.

Citations:

[1853] EngR 1085, (1853) 1 Sm and G 590, (1853) 65 ER 258

Links:

Commonlii

Cited by:

CitedGibbon v Mitchell ChD 1990
G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 05 May 2022; Ref: scu.295071

Egerton v Lord Brownlow: 20 Aug 1851

John WilIiam Earl of Bridgewater devised his freehold estates to trustees, in trust to convey them to the use of Lord Alford, his great-nephew, for ninety-nine years, if he should so long live ; remainder to trustees and their heirs doring the life of Lord Alford, in trust to preserve contingent remainders ; remainder to the use of the heirs male of the body of Lord Alford, with diverse remainders over: provided that, if Lord Alford should die not having acquired the title of Duke or Marquis of Bridgewater, the estate directed to be limited to the heirs male of his body should cease, and the estates should thereupon go over and be enjoyed according to the subsequent uses and limitations directed by his will. Lord Alford died leaving a son, but without having acquired the title. Held, that the proviso was valid.

Citations:

[1851] EngR 789, (1851) 1 Sim NS 464, (1851) 61 ER 180

Links:

Commonlii

Cited by:

Appeal fromEgerton v Earl of Brownlow HL 1853
The House considered a challenge to the terms of a trust on the basis that it offended public policy. The House therefore considered the nature and importance of public policy.
Held: Public policy ‘has been confounded with what may be called . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 05 May 2022; Ref: scu.297105

Talbot v Marshfield: 17 Nov 1864

Payment into Curt. Discretionary Power in Trustees Over Fund, – Although the mere existence of a discretionary power in trustees over a fund affords no reason why the Court should not order payment of the fund into Court, unless such payment into Court would interfere with the exercise by the trustee of such discretion ; yet where it appeared that trustees were about in the due exercise of a discretionary power to deal with a fund, the Court refused to order payment into Court, although the trustees had not actually parted with the fund.

Citations:

[1864] EngR 762, (1864) 2 Dr and Sm 285, (1864) 62 ER 630

Links:

Commonlii

Cited by:

See AlsoTalbot v Marshfield 15-Jun-1865
Trustees took counsel’s opinion as to whether they should exercise a discretionary power to advance part of their trust fund for the benefit of some of the cestuis que trust: and others of the cestuis que trust having filed a bill to restrain them . .
Lists of cited by and citing cases may be incomplete.

Trusts, Litigation Practice

Updated: 05 May 2022; Ref: scu.282476

Stanley v Jackman: 10 Feb 1857

A father directed a fund, given to his daughter, to be settled ‘upon her and her issue,’ so that ‘the same might not be liable or subject to the debts, control or engagements of any husband’ whom she might happen to marry during her lifetime. Held, that the settlement ought to give the daughter a power of appointment by will, in default of issue. Form of settlement in such a case.

Citations:

[1857] EngR 259 (C), (1857) 23 Beav 450

Links:

Commonlii

Trusts, Family

Updated: 05 May 2022; Ref: scu.290005

Hayim v Citibank NA: PC 1987

(Hong Kong) The plaintiffs were the testator’s sons, who were beneficiaries under his American will. He also executed a Hong Kong will under which the residue of his property outside the United States was to be held on trust for sale on the trusts of the American will. The terms of the trust enabled the trustee of the American will to give directions to the trustee of the Hong Kong will in respect of the retention of a house in Hong Kong in the interests of the elderly residents of the house. The plaintiffs began proceedings in Hong Kong against the first defendant, the trustee of the American will, and the second defendant, the trustee of the Hong Kong will, for an order that the house be sold and for damages to be awarded against the second defendant for breach of the trusts of the Hong Kong will by the delay of the second defendant in selling the house. No relief was sought against the first defendant. The board considered whether the plaintiff could bring a derivative action against HK for breach of trust on account of their failure to sell a house in Hong Kong.
Held: The terms of the trust enabled C to give directions to HK in respect of the retention of this house in the interests of the elderly residents of the house. There were no special circumstances entitling the plaintiffs to bring proceedings directly against the second defendant, but that in any event no breach of the trusts of the Hong Kong will had been committed by the second defendant in implementing the lawful instructions of the first defendant.
Lord Templeman said that: ‘when a trustee commits a breach of trust or is involved in a conflict of interest and duty or in other exceptional circumstances a beneficiary may be allowed to sue a third party in the place of the trustee. But a beneficiary allowed to take proceedings cannot be in a better position than a trustee carrying out his duties in a proper manner . .’ and
‘The authorities cited by Mr Nugee only demonstrate that when the trustee commits a breach of trust or is involved in a conflict of interest and duty or in other exceptional circumstances a beneficiary may be allowed to sue a third party in place of the trustee. The beneficiary allowed to take proceedings cannot be in a better position than the trustee carrying out his duty in an improper manner.’
The authorities also: ‘demonstrate that a beneficiary has no cause of action against the third party save in exceptional circumstances, which embrace a failure, excusable or inexcusable, by the trustees in the performance of the duty owed by the trustees to the beneficiary to protect the trust estate, or to protect the interests of the beneficiary in the trust estate.’

Judges:

Lord Templeman

Citations:

[1987] 1 AC 730, [1987] 3 WLR 83

Jurisdiction:

Commonwealth

Cited by:

CitedRoberts v Gill and Co and Another CA 15-Jul-2008
The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid . .
CitedRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Trusts, Litigation Practice

Updated: 05 May 2022; Ref: scu.279803

Windeler v Whitehall: 1990

The plaintiff and defendant lived together but were not married. The plaintiff spent some of a legacy she received on living expenses and supervised minor building works to the family home. She claimed an interest in it.
Held: Millett J said: ‘If this were California, this would be a claim for palimony, but it is England and it is not. English law recognises neither the term nor the obligation to which it gives effect. In this country a husband has a legal obligation to support his wife even if they are living apart. A man has no legal obligation to support his mistress even if they are living together. Accordingly, the Plaintiff does not claim to be supported by the Defendant but brings a claim to a proprietary interest in his business and his home.’ The works did not constitute a detriment on which she could rely: ‘Any wife or mistress would do the same. Only a lawyer versed in the authorities but lacking all sense of proportion would consider that such conduct gave her any kind of proprietary interest in the house.’

Judges:

Millett J

Citations:

[1990] 2 FLR 505

Jurisdiction:

England and Wales

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.

Trusts, Family

Updated: 05 May 2022; Ref: scu.276433

Oceanic Steam Navigation Co v Sutherberry: 1880

Citations:

(1880) 16 Ch D 236

Jurisdiction:

England and Wales

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: 05 May 2022; Ref: scu.277070

Leake (formerly Bruzzi) v Bruzzi: CA 1974

The house was purchased in the husband’s sole name with a declaration of trust in favour of the husband and wife, holding the property as joint tenants. The wife had left the matrimonial home, and the husband had paid all the mortgage instalments including interest.
Held: The declaration of trust was overriding, and subject to adjustments for matters after severance, the property was to be held in equal shares. He was given credit for the capital payments but not for interest because he had had the sole use of the home and the interest payments could be regarded as ‘something equivalent to rent or payment for use and occupation.

Judges:

Ormrod LJ

Citations:

[1974] 1 WLR 1528

Statutes:

Married Women’s Property Act 1882 17

Jurisdiction:

England and Wales

Cited by:

CitedGoodman v Gallant CA 30-Oct-1985
The court reviewed the conflicting authorities with regard to the creation of trusts and held that the overwhelming preponderance of authority was that, in the absence of any claim for rectification or rescission, provisions in a conveyance . .
CitedByford v Butler; In re Byford deceased ChD 10-Jun-2003
The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the . .
CitedClarke v Harlowe ChD 12-Aug-2005
The parties lived together. They acquired between them several properties of which the last was declared to be held as joint tenants. The relationship broke down. The parties now sought a declaration as to the destination of the proceeds of sale, . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 05 May 2022; Ref: scu.181826

Federal Bank of the Middle East v Hadkinson and Others: CA 16 Mar 2000

The Court had to decide whether an order in the standard form of freezing order was effective to cover assets which were held in the defendant’s name but which belonged beneficially to third parties.
Held: It did not. A Mareva injunction in its standard form operated only to attach and freeze assets in which the person injuncted had some interest. They did not affect funds of which he was a bare trustee without any beneficial interest in the assets. The legal title did not mean that the assets were ‘owned’ by him in the relevant sense. Such assets could not be used to satisfy any claim against the person injuncted and were therefore not covered by the standard wording.

Judges:

Mummery and Nourse LJJ

Citations:

Times 16-Mar-2000, Gazette 23-Mar-2000, [2000] 1 WLR 1695

Jurisdiction:

England and Wales

Citing:

Appeal fromFederal Bank of the Middle East Limited v Charles Hadkinson and Others ChD 20-Oct-1999
Security for costs had been properly been required from a defendant who wished to appeal against an order, where that defendant was funded by a party outside the jurisdiction. The right of a party to appeal given by the new Civil Procedure Rules . .

Cited by:

Appealed toFederal Bank of the Middle East Limited v Charles Hadkinson and Others ChD 20-Oct-1999
Security for costs had been properly been required from a defendant who wished to appeal against an order, where that defendant was funded by a party outside the jurisdiction. The right of a party to appeal given by the new Civil Procedure Rules . .
CitedJSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Trusts

Updated: 05 May 2022; Ref: scu.80492