Category: Trusts

Stack 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 the property has been transferred into joint names, it can usually be taken for granted that each was intended to have some beneficial interest in the property. Ms Dowden’s appeal succeeded, and her interest was declared to be 65% (though had she asked she might have got more). Discussing the case law on trusts of family homes: ‘To the detached observer, the result may seem like a witch’s brew, into which various esoteric ingredients have been stirred over the years, and in which different ideas bubble to the surface at different times. They include implied trust, constructive trust, resulting trust, presumption of advancement, proprietary estoppel, unjust enrichment, and so on. These ideas are likely to mean nothing to laymen, and often little more to the lawyers who use them. ‘ (Lord Justice Carnwath)

Judges:

Chadwick LJ, Varnwath LJ

Citations:

[2006] 1 FLR 254, [2005] EWCA Civ 857

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996 14

Jurisdiction:

England and Wales

Citing:

Cited – Goodman 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 . .
Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – 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 . .
Cited – Pettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .
Cited – Re Gorman ChD 1990
The matrimonial home was in the joint names of husband and wife. After the marriage broke down, the husband left the home, and the wife discharged all mortgage payments (both capital and interest). The husband was adjudicated bankrupt. The wife . .
Cited – Passee v Passee 1988
. .
Cited – Walker v Hall CA 1984
The court considered the way of distributing property purchased by an unmarried couple: ‘When such a relationship comes to an end, just as with many divorced couples, there are likely to be disputes about the distribution of shared property. How are . .
Cited – Young v Young 1984
. .
Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Springette v Defoe CA 1-Mar-1992
Property was purchased in joint names, but with no express declaration of the beneficial interests. The couple had lived together for a short time as joint tenants of the local authority. They were able to purchase at a substantial discount from the . .
Cited – Harwood v Harwood CA 1991
The court rejected the argument that declaring in a transfer of land that the survivor ‘can give a valid receipt for capital money arising on a disposition of the land’ in itself amounts to an express declaration of a beneficial joint tenancy. . .
Cited – Mortgage Corporation Ltd v Shaire and Another ChD 25-Feb-2000
The claimant had an equitable charge over the property, and sought a possession order after failures to keep up repayments. The order was sought under the Act, and the claimants asserted that the conditions for the grant of possession were . .

Cited by:

Appeal from – Stack 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 . .
Cited – Fowler v Barron CA 23-Apr-2008
The parties had lived together for many years but without marrying. The house had been put in joint names, but without specific advice on the issue or any express declaration of trust. In practice Mr Barron made the direct payments for the house and . .
Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 02 September 2022; Ref: scu.228590

UCB Group Ltd v Gillian Hedworth: CA 24 May 2002

The claimant was a registered chargee of the property. The respondent claimed an overriding interest. The registered proprietor held the land under a bare trust for the defendant, paying her a weekly rent. She was not in occupation. She had registered a caution.
Held: The caution had been properly discharged. A beneficial interest under a bare trust of registered land was a minor interest and not a registrable estate, and could be protected by a restriction only, and rent paid out under such a trust did not ‘issue’ out of the land and was not an overriding interest.

Judges:

Lord Justice Johnathan Parker

Citations:

Times 13-Jun-2002, Gazette 04-Jul-2002, [2002] EWCA Civ 708

Links:

Bailii

Statutes:

Registered Land Act 1925 2(1) 70(1)(g)

Jurisdiction:

England and Wales

Registered Land, Trusts

Updated: 02 September 2022; Ref: scu.171269

Gravesend Corporation v Kent County Council: KBD 1935

A school vested in the Corporation had been built with the assistance of financial contributions from the County Council. As a result of various legislative changes the County Council replaced the Corporation as the education authority and as the user of the school. The main questions were whether the County Council had to pay the Corporation rent for their use of the school and whether the County Council, by its contributions to the costs of building and maintaining the school, had acquired an equitable interest in the premises.
Held: ‘… though the legal estate in the school is vested in the Gravesend council, the county council have an equitable estate or interest in it in the proportion that the total sums contributed by the county council bear to the total cost on the principles very simply and clearly stated by Farwell L.J. in The Venture ‘ and ‘On this basis the full rent must be reduced in favour of the county council to the extent of this equitable interest or resulting trust pro tanto’.

Judges:

Lord Wright

Citations:

[1935] 1KB 339

Jurisdiction:

England and Wales

Citing:

Cited – The Venture CA 1908
Contributions were made to the purchase price of a yacht.
Held: The court concluded that the contributor was entitled under a resulting trust to a pro rata equitable interest in the yacht. The payments were made at the time the yacht was . .

Cited by:

Cited – Foskett 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, Insurance

Updated: 01 September 2022; Ref: scu.187418

Starglade Properties Ltd v Nash: CA 19 Nov 2010

It is ultimately for the court to decide, as it must in the case of the standard of honesty to be expected in dealing of businessmen and trustees, whether or not conduct amounts to cheating. The standard is objective.
Leveson LJ identified the different tests used in civil and criminal cases, and took the view that a review was called for.

Judges:

Hughes, Leveson LJJ

Citations:

[2010] EWCA Civ 1314, [2011] Lloyd’s Rep FC 102

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Starglade Properties Ltd v Nash and Others ChD 26-Jan-2010
. .

Cited by:

Cited – Ivey v Genting Casinos UK Ltd (T/A Crockfords Club) QBD 8-Oct-2014
The claimant, a professional gambler, sued the defendant casino for his winnings. The club replied that the claimant’s methods amounted to a form of cheating, and that no liability arose to pay the winnings.
Held: The claim failed. ‘The fact . .
Cited – Ivey v Genting Casinos (UK) Ltd (T/A Crockfords) SC 25-Oct-2017
The claimant gambler sought payment of his winnings. The casino said that he had operated a system called edge-sorting to achieve the winnings, and that this was a form of cheating so as to excuse their payment. The system exploited tiny variances . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Trusts

Updated: 26 August 2022; Ref: scu.426038

Southampton City Council v Southampton Medina Mosque Trust Ltd and Others: ChD 5 Oct 2010

The court considered competing claims for the ownership of a newly built mosque. The Council had agreed to it being built on its land and now sought a direction as to its future ownership. The first named defendant charity disputed ownership with a father and son as trustees of a different mosque. An original constitution appeared to have been adopted but then another was proposed. When a trustee dies, one of the defendants was appointed temprarily, but there was a dispute as to the confirmation of that appointment.
Held: The building agreement was in favour of named individuals as trustees of the unincorporated trust. However at a properly constituted meeting, the benefit of the agreement had been assigned to the newl formed charitable company. There should be a transfer accordingly.

Judges:

David J

Citations:

[2010] EWHC 2376 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Trusts, Charity

Updated: 25 August 2022; Ref: scu.424869

Armstrong v Armstrong: ChD 23 Aug 2019

The claimant sought declaratory relief (in effect, the determination of questions of construction) or alternatively rectification, in relation to written documents constituting trusts of two different life assurance policies

Judges:

HHJ Paul Matthews

Citations:

[2019] EWHC 2259 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Trusts

Updated: 23 August 2022; Ref: scu.640884

Clarkson and Another v Davies and Others: PC 23 Oct 1922

Ontario – Discussing the Taylor case, the Board said: ‘ . . it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arise only by reason of that transaction.’

Citations:

[1922] UKPC 79, [1923] AC 100

Links:

Bailii

Jurisdiction:

Canada

Citing:

Cited – Taylor v Davies PC 19-Dec-1919
(Ontario) An assignee for the benefit of creditors conveyed mortgaged property to the mortgagee in satisfaction of part of the debt due to him. The mortgagee was also one of the inspectors required by the Canadian legislation to supervise the . .

Cited by:

Cited – Halton International Inc Another v Guernroy Ltd CA 27-Jun-2006
The parties had been involved in investing in an airline to secure its future, but it was now said that one party had broken the shareholders’ or voting agreement in not allowing further investments on a pari passu basis. The defendants argued that . .
Lists of cited by and citing cases may be incomplete.

Company, Trusts, Limitation

Updated: 23 August 2022; Ref: scu.422885

Patton v The Toronto General Trusts Corporation and Others: PC 30 Jun 1930

(Ontario) The court considered the validity of gifts of annuities made subject to a condition precedent that the beneficiary proves himself to be ‘of the Lutheran religion’.
Held: The claim to the annuity was made out. Evidence might be given of the tenets of that religion or faith so as to see if the person is or is not an adherent of it.

Judges:

Viscount Dunedin, Blanesburgh, Darling, Atkin, MacMillan LL

Citations:

[1930] UKPC 61, [1930] AC 629

Links:

Bailii

Cited by:

Cited – Re Tuck’s Settlement Trusts CA 1-Nov-1977
By his will, Sir Adolph Tuck sought to ensure that his successors should be Jewish, and stated that the arbitrators of this must be the Chief Rabbi of his community. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts

Updated: 23 August 2022; Ref: scu.421957

Ashby v Kilduff: ChD 30 Jul 2010

The parties had been in a relationship. The claimant asserted that properties were bought by him and held on trust by the defendant. He had lost an expensive court action and said that the purported sale to the defendant created a trust.

Judges:

Bernard Livesey QC

Citations:

[2010] EWHC 2034 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Land, Trusts

Updated: 22 August 2022; Ref: scu.421583

In re Dartnall: CA 1895

Citations:

[1895] 1 Ch 474

Jurisdiction:

England and Wales

Cited by:

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

Trusts

Updated: 22 August 2022; Ref: scu.567853

Chan, Chun v Leung, Ho: CA 29 Jul 2002

The claimant sought to assert her interest in a house purchased by a company in debt to the respondent for whom she had worked and with whom she had had a relationship. The company was insolvent. She claimed he had promised her a house, and that it had been purchased under that promise, and that she was protected under both 1996 Acts. The defendant appealed orders declaring her interest.
Held: the decision followed largely from the judge’s assessment of the parties and the exercise of his discretion. The claimant had acted to her detriment in accepting the gift, and the property which was proper for the two when living together remained appropriate when she lived there alone.

Judges:

Lord Justice Rix, Mr Justice Nelson, Lord Justice Johnathan Parker

Citations:

[2002] EWCA] Civ 1075

Links:

Bailii

Statutes:

Family Law Act 1996 33(3) 33(4), Trusts of Land and Appointment of Trustees Act 1996 14

Jurisdiction:

England and Wales

Citing:

Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 20 August 2022; Ref: scu.174422

Re Endacott: CA 12 Oct 1959

The will had left the residue to a parish council for the purpose of providing some useful memorial to myself, subject to the proviso that if my wife outlives me they must during the lifetime of my wife pay to my wife the interest which may accrue on the capital when properly invested by them’. The gift was challenged as bad in law. The Council appealed saying that the purpose was the reason for the gift, not a trust affecting the gift.
Held: Non-charitable purpose trusts are anomalous.

Judges:

Lord Evershed MR, Sellers, Harman LJJ

Citations:

[1960] Ch 232, [1959] EWCA Civ 5, [1959] 3 All ER 562, [1959] 3 WLR 799

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Hunt 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.

Charity, Trusts, Wills and Probate

Updated: 20 August 2022; Ref: scu.245265

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

Jurisdiction:

England and Wales

Cited by:

Cited – Charman 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 . .
Cited – Thomas 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: 20 August 2022; Ref: scu.236581

In re Downshire Settled Estates: CA 1953

A scheme of arrangements was proposed on behalf of infant beneficiaries to three settlements. The object of the scheme was to avoid losses to the beneficiaries by reason of inheritance tax.
Held: The court rejected the contention that it had an inherent jurisdiction to vary the beneficial interests in a trust fund designated by the settlor. The section provides a power to the Court to approve advantageous dealings. In those circumstances, if the power to be given to the trustee was not a specific power for a particular dealing but rather a wide discretionary power to alter the terms of the trust then the case did not fall within the section.
Sir Francis Evershed MR said: ‘We have already pointed out that neither trustees nor the court itself at any time, before 1925, had any general power to depart from the precise directions (provided that they were within the law) that a settlor thought proper to declare. If Parliament, in enacting section 57, had intended to confer this power on the court it is, in our view, inconceivable that it would not have done so in express terms, having regard not only to the novelty but also to the width of the jurisdiction that it was creating; and it is equally incredible that it should have done so without imposing any kind of limit, other than expediencey [sic], upon the extent to which, or the manner in which, the court was to exercise its powers.’
Denning LJ said: ‘The practice of the profession in these cases is the best evidence of what the law is: indeed it makes law.’

Judges:

Sir Francis Evershed MR, Sir Charles Romer LJ, Denning LJ

Citations:

[1953] Ch 218

Statutes:

Trustee Act 1927 57

Jurisdiction:

England and Wales

Cited by:

Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Appeal from – Chapman v Chapman HL 25-Mar-1954
It was suggested to the House that: ‘A judge of the Chancery Division of the High Court of Justice has an inherent jurisdiction, in the execution of the trusts of a settlement, to sanction, on behalf of infant beneficiaries and unborn persons, a . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 20 August 2022; Ref: scu.236531

Perpetual Executors and Trustees Association of Australia Limited v Swan and Others: PC 3 Aug 1898

Victoria – The Board was asked wheter within the applicable laws of the Colony of Victoria, the placing of trust funds with banks fulfilling certain conditions was an authorised investment or not.

Judges:

Macnaghton, Morris, James of Hereford, LL, ir Henry Strong

Citations:

[1898] UKPC 53, [1898] AC 763

Links:

Bailii

Commonwealth, Trusts, Banking

Updated: 19 August 2022; Ref: scu.417184

Stokes v Anderson: CA 1991

The claimant had made two payments, amounting together to andpound;12,000, towards the acquisition of the one half share of the defendant’s ex-wife in the net equity (valued at andpound;90,000) in a house in which the claimant and the respondent lived as husband and wife. ”This is a dispute between an unmarried couple as to the beneficial ownership of a house in which they formerly lived together; compare Gissing v Gissing and Grant v Edwards [The judge]decided that the woman was entitled to half the beneficial interest in the house. The man has now appealed to this court, contending that the woman has no beneficial interest, alternatively that it does not exceed 15% at the most.’
Held: The contributions were made pursuant to a joint intention that the woman should have an interest. As to its calculation: ‘Miss Anderson’s evidence was that Mr Stokes said that she was to have a beneficial interest in the property, he did not say what the extent of that interest was to be; she assumed that it would be 50%. There is no other evidence to suggest that the extent of Miss Anderson’s beneficial interest was ever discussed between herself and Mr Stokes.’ it was open to the judge on the evidence as a whole, to find a common intention that the property should be shared 50/50, ‘it is important to emphasise that he could only have done so by inference. Although the parties had orally made plain their common intention that Miss Anderson should have a beneficial interest in the property, the extent of it had never been discussed.’ The claimant’s share was reduced from the 50% which she had been awarded by the judge to 25%, because at the time when the claimant made her payments, Mr Stokes was already entitled to a one half share; the payments were made in order to acquire the other one half share from his ex-wife. As Lord Justice Nourse: ‘. . . to hold that Miss Anderson was entitled to half the beneficial interest in Stone Cottage . . . would be markedly unfair to Mr Stokes. On a broad approach, the only approach which can be made, I think that the fair view of all the circumstances is that Miss Anderson is entitled to a beneficial interest equivalent to one half of Mrs Stokes’ half-share, or one quarter of the whole, subject to the mortgage.’

Judges:

Lord Justice Nourse

Citations:

[1991] 1 FLR 391

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Cited – Hyett v Stanley and others CA 20-Jun-2003
The couple had lived together at the property without being married for several years. The house was held in the man’s sole name, and after his death she sought a half share in it. It was established that she had been told she should have a half . .
Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – Van Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
Lists of cited by and citing cases may be incomplete.

Trusts, Estoppel

Updated: 19 August 2022; Ref: scu.197738

Kernott v Jones: CA 26 May 2010

The unmarried couple bought a property together. Mr K appealed against an award of 90% of the property to his former partner. The court was asked, whether, following Stack v Dowden, it was open to the court to find that the parties had agreed that their interests should be ambulatory and held unequally.
Held: (Jacob LJ dissenting). Mr Kernott’s appeal succeeded, and the division of 50-50 was restored.

Judges:

Wall, Jacob, Rimer LJJ

Citations:

[2010] EWCA Civ 578, [2010] WLR (D) 136, [2010] 22 EG 106, [2010] BPIR 853, [2010] 3 All ER 423, [2010] 1 WLR 2401, [2010] 2 FCR 372, [2010] Fam Law 806

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996 14

Jurisdiction:

England and Wales

Citing:

At High Court – Jones v Kernott ChD 10-Jul-2009
The couple were unmarried but had bought a property in joint names. Ms Jones had contributed the overwhelming share of the purchase price, and had paid all outgoings after Mr Kernott left several years ago. The County court judge had awarded J 90%, . .
Cited – Stack 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 . .
Cited – G v G (Minors: Custody appeal) CA 1985
A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: ‘What this court should seek to do is to . .

Cited by:

Cited – Williams v Lawrence and Another ChD 28-Jul-2011
The claimant, as trustee for the deceased’s insolvent estate, sought a declaration that a transfer of the deceased’s share in property made by the executors was void as being at an undervalue. The property was subject to a right of occupation in . .
Cited – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 18 August 2022; Ref: scu.416103

Pudner and Another v Pudner: CA 27 Feb 2006

The parties challenged the validity of a will, and claimed the house by survivorship. The house had been conveyed into joint names, but the solicitors on registration had declared it a tenancy in common. This was said to have been a mistake.
Held: there had been no words of severance. The application failed.

Citations:

[2006] EWCA Civ 250

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Pettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .
Cited – Goodman 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 . .
Lists of cited by and citing cases may be incomplete.

Wills and probate, Trusts

Updated: 18 August 2022; Ref: scu.239182

Vatcher v Pault: PC 17 Dec 2014

(Jersey) A fraudulent exercise of a trust power is constituted if it is exercised for a purpose or with an intention beyond the scope of the power. It was said that ‘it is not enough that an appointor or some person not an object of power may conceivably derive some benefit’: ‘The general presumption which the law makes is in favour of the good faith and validity of transactions which have long stood unchallenged, and if the known facts and existing documents are, though such as to give rise to suspicion, nevertheless capable of a reasonable explanation, the Court ought not to draw inferences against the integrity of persons who have long been dead and cannot therefore defend themselves.’
Lord Parker went on: ‘The term fraud in connection with frauds on a power does not necessarily denote any conduct on the part of the appointor amounting to fraud in the common law meaning of the term or any conduct which could be properly termed dishonest or immoral. It merely means that the power has been exercised for a purpose, or with an intention, beyond the scope of or not justified by the instrument creating the power.’

Judges:

Lord Parker of Waddington

Citations:

[1915] AC 372, [1914] UKPC 100

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Futter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .
Cited – Eclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Torts – Other

Updated: 17 August 2022; Ref: scu.408859

Lui v Chong: CA 21 Apr 2010

The defendant appealed against an order that he held land on a bare trust for the claimant as personal representative of the deceased. He had acquired the land under survivorship. The court found that the land had been put into joint names under an assent for administrative convenience only and not by way of gift.
Held: The appeal failed. The argument based on a certificate of value included in the assent which would have been unnecessary in a gift was equally inconsistent with the defendant’s own case, and the assent was so badly drafted that no such conclusion could properly be drawn from it.

Judges:

Henderson LJ

Citations:

[2010] EWCA Civ 398

Links:

Bailii

Statutes:

Administration of Estates Act 1925 33(4)

Jurisdiction:

England and Wales

Land, Trusts

Updated: 17 August 2022; Ref: scu.408566

Hyett v Stanley and others: CA 20 Jun 2003

The couple had lived together at the property without being married for several years. The house was held in the man’s sole name, and after his death she sought a half share in it. It was established that she had been told she should have a half share in the house during his life, and that she had accepted obligations to the bank on the strength of that promise. The executors contended that it has been intended only that she should acquire an interest which would persist during his lifetime.
Held: Mr Freeman and Miss Hyett rendered themselves jointly and severally liable to the Bank by the very transaction by which Miss Hyett acquired her beneficial interest, they could only reasonably have intended that they should each take a half share. A life insurance policy on joint lives was held for Mrs Hyett only to the extent required to repay the charge, but as to the rest for the executors.

Citations:

[2003] EWCA Civ 942, [2004] 1 FLR 394

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Eves v Eves CA 28-Apr-1975
The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired . .
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Stokes v Anderson CA 1991
The claimant had made two payments, amounting together to andpound;12,000, towards the acquisition of the one half share of the defendant’s ex-wife in the net equity (valued at andpound;90,000) in a house in which the claimant and the respondent . .
Cited – Smith v Clerical Medical and General Life Assurance Society CA 1993
. .

Cited by:

Cited – Van Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate, Land

Updated: 16 August 2022; Ref: scu.184606

In the Matter of the Universities Superannuation Scheme – Universities Superannuation Scheme Ltd v Simpson, Mcadoo, University of London: ChD 29 Apr 2004

Members of the superannuation scheme complained that trustees were calculating the benefits payable on early retirement by reference to the standard terms of employment, and even though they had particular and different terms.
Held: The calculation had to be with reference to the terms and conditions of the member who applied for the benefits.

Judges:

The Hon Mr Justice Lloyd

Citations:

[2004] EWHC 935 (Ch), Times 27-May-2004

Links:

Bailii

Statutes:

Pension Schemes Act 1993 71 74 180

Jurisdiction:

England and Wales

Citing:

Cited – Barber v Guardian Royal Exchange Assurance Group ECJ 17-May-1990
Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Trusts

Updated: 16 August 2022; Ref: scu.196630

In re Hallett’s Estate; Knatchbull v Hallett: CA 1880

Where a trustee of a policy used money received from others to make payment of premiums on an insurance policy, they would be entitled to a lien on the policy. Where an asset was acquired exclusively with trust money, the beneficiary could either assert equitable ownership of the asset or enforce a lien or charge over it to recover the trust money. In the case of a mixed substitution the beneficiary is confined to a lien.

Judges:

Sir George Jessel MR

Citations:

(1880) 13 ChD 696

Jurisdiction:

England and Wales

Cited by:

Cited – Aluminium 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 . .
Cited – Aluminium Industrie Vaassen B V v Romalpa Aluminium Ltd CA 16-Jan-1976
The seller sold aluminium to the defendant, but included a clause under which they retained title in the materials sold, even if mixed in with manufactured goods, until they had been paid for the metal. The defendants appealed a finding that the . .
Cited – Foskett 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 . .
Explained away – In re Tilley’s Will Trusts ChD 1967
The court considered the rights of a beneficiary to participate in any profit which resulted where a trustee mixed trust money with his own money and then used it to purchase other property. . .
Disapproved – Foskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 16 August 2022; Ref: scu.181238

Special Case – The Trustees of James Spears and Others: SCS 21 Jun 1873

Circumstances in which held (1) that a widow was not entitled to a liferent of a residue; and (2) that trustees (though not bound) were entitled to make advances from the income of the estate for the education and maintenance of the children.

Citations:

[1873] SLR 10 – 509

Links:

Bailii

Jurisdiction:

Scotland

Trusts

Updated: 16 August 2022; Ref: scu.576809

Talbot v Staniforth: 27 May 1861

Where a tenant for life purchased the reversion of his nephew in the family estate : Held, that the transaction fell within the ordinary rule as to reversionary interests, and was not to be regarded as a family arrangement.
The fact that a reversion is dependent on contingencies, which do not admit of estimation by actuaries, does not relieve the purchaser from the onus of shewing that fair value was given.
A family estate stood settled on A. (a bachelor) for life, with remainder to his issue in tail male, with remainder to his nephew B. in tail male, with remainder to the brothers of B. successively in tail male. A. purchased B.’s interest, and required B. to concur in disentailing the estate and conveying the fee. The sale was bona fide intended to be for a fair price ; and the object of the purchaser appeared to be to prevent the estate being sold by B. out of the family. The devisees of A. having failed to prove that fair value was given, the sale was set aside, without costs on either side.
Semble, that the estate to be valued was the reversion in fee which the purchaser acquired, and not merely the base fee which the vendor alone could have sold to a stranger.

Citations:

[1861] EngR 625, (1861) 1 J and H 484, (1861) 70 ER 837

Links:

Commonlii

Jurisdiction:

England and Wales

Land, Trusts

Updated: 15 August 2022; Ref: scu.284386

Inversiones Frieira Sl and Another v Colyzeo Investors II Lp and Another: ChD 14 Jul 2011

The court was asked as to the extent to which an investor in a co-investment vehicle owned and managed by connected companies can discover what has actually happened to his money, and to what extent he must simply rely on what is reported to him by way of explanation as to why his investment had halved in value.

Judges:

Norris J

Citations:

[2011] EWHC 1762 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Financial Services, Trusts

Updated: 14 August 2022; Ref: scu.441824

Mcvey and Others, Regina (on The Application of) v Secretary of State for Health: Admn 5 Mar 2010

The respondent had set up a trust providing for compensation for the victims of variant CJD. The claimants challenged a variation of the trust scheme which did not proceed on the basis of a recommendation made for this purpose.

Judges:

Silber J

Citations:

[2010] EWHC 437 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Trusts

Updated: 14 August 2022; Ref: scu.402538

Sheffield v Sheffield and Others: ChD 13 Dec 2013

Trial of a claim by which the Claimant in his capacity as a beneficiary of a family trust seeks various accounts and payments of (a) a quarter of certain trust income received by the trust which he maintains should have been but was not paid to him; (b) a quarter of the income which he maintains the trustees ought to have obtained but failed to obtain from the exploitation of the trust assets and (c) restitution or compensation for benefits received or conferred by the trustees on others without his consent.

Judges:

Pelling QC HHJ

Citations:

[2013] EWHC 3927 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Trusts

Updated: 14 August 2022; Ref: scu.519349

Thomas v Secretary of State for India in Council: 1870

Subscribers to an annuity fund asserted claims to surplus money belonging to the fund. The trustees took advice in relation to that claim. One of the subscribers filed a Summons to compel the production of the legal opinion.
Held: Where there is a conflict of interest between the trustee and the beneficiaries and the trustee procures an opinion of counsel for his own protection, the beneficiaries are not entitled to inspect the opinion.
James VC said: ‘There is a difference between an opinion taken by a trustee on his own behalf, and one taken on behalf of the trust estate. In this case the opinion was taken by the trustees on their own behalf, after litigation had been commenced, and with a view to resisting future litigation. It is absurd to say that that is taken by a trustee on behalf of his cestuis que trustent. You might as well ask for production of the instructions given by the defendants to their counsel in this present case. The application must be refused.’

Judges:

James VC

Citations:

(1870) 18 WR 312

Jurisdiction:

England and Wales

Cited by:

Cited – Dawson-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.

Legal Professions, Trusts

Updated: 08 August 2022; Ref: scu.551065

In re Abrahams’ Will Trusts: 1969

The trustees sought to mitigate estate duty by terminating a life interest, and accelerating the interest fo the next generation.
Held: There had been no valid exercise of the power of advancement. Cross J rejected an argument approximating an advancement by way of resettlement to the exercise of a power of appointment. Although they were treated in the same way for perpetuity purposes, in his view the similarity ended there: ‘The interests given to separate objects of an ordinary special power are separate interests, but all the interests created in Carole’s fund were intended as part and parcel of a single benefit to her.’

Judges:

Cross J

Citations:

[1969] 1 Ch 463

Jurisdiction:

England and Wales

Cited by:

Cited – Futter 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: 07 August 2022; Ref: scu.509125

Cherry v Boultbee: CA 6 Apr 1838

TB was indebted to CB, his sister, in the sum of andpound;1878. He became bankrupt, and shortly after his bankruptcy C B made her will, giving legacies of andpound;500 and andpound;2,000 to her executors, in trust to pay the interest thereof (as to the andpound;500 after the decease of her mother), to TB for his life, without power of anticipation and free from his debts ; and after his decease to pay the principal to such persons as he should appoint, and in default of appointment to his executors and administrators, for his and their own use and benefit. TB died without having obtained his certificate, and without having attempted to make any appointment.
Held: The executors of the testatrix had no right to set off the debt due from TB to the testatrix against the legacies, but that the assignee of TB was entitled to so much of the legacies as the assets were sufficient to pay. A person who owes an estate money, that is, who is bound to increase the general mass of the estate by a contribution of his own, cannot claim a share given to him out of that mass estate without first making the contribution that completes it.

Judges:

Lord Langdale MR

Citations:

[1838] EngR 541, (1838) 2 Keen 319, (1838) 48 ER 651 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Appeal From – Cherry 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 – In 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 . .
Cited – In re SSSL Realisations (2002) Ltd and Another; Squires and others v AIG Europe (UK) Ltd and Another CA 18-Jan-2006
A creditor claiming an equity in a debt but who himself owed money to the debtor, could not pursue his claim without first contributing the sum due. A person could not take an aliquot share out of a fund without first contributing what he owed to . .
Cited – In re Kaupthing Singer and Friedlander Ltd CA 11-May-2010
The court was asked as to the set-off, in a company administration, of future debts owed by the company to its creditors and by those creditors to the company, and whether the effect of those provisions was that, after the future debts were . .
Applied – In re Melton, Milk v Towers CA 1918
In 1901 Richard Melton and another guaranteed to a Bank his son Arthur’s debts up to andpound;500. Richard died survived by his widow, Arthur and three daughters, giving his real estate to his widow for her life, with remainder to his four children . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 07 August 2022; Ref: scu.312547

Jeeves v Imperial Foods Ltd, Pension Scheme: ChD 27 Jan 1986

Walton J explained that there may be many ‘occasions in law in which a fund is held on trust, but at the particular point there is no final definitive trust deed’. He went on to say that ‘it may very well be that . . a person who had contributed to the fund in question would be in a position to object to some provision which was never contemplated, but which was put or attempted to be put into the final trust deed’.

Judges:

Walton J

Citations:

Unreported, 27 January 1986

Jurisdiction:

England and Wales

Citing:

Cited – Attorney-General v Mathieson CA 1907
The Rev John Wilkinson, ran charities in Stoke Newington in London, including ‘the Mildmay Mission to the Jews’. He was given received andpound;1350 from ‘a lady’ locally who suggested that the money be used for a convalescent home. He pointed out . .

Cited by:

Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Lists of cited by and citing cases may be incomplete.

Charity, Trusts

Updated: 06 August 2022; Ref: scu.543045

Somerset-Leeke and Another v Kay Trustees and Another: ChD 1 May 2003

The defendants sought to challenge a refusal of the court to order security for costs to be made by the claimants on the basis that they had hidden assets to protect themselves against costs if the case did not succeed.
Held: The appeal failed. The claimant had merely moved from one country to another, and that was not of itself evidence of an intention to hide assets, and in particular the new country was a country supporting the convention of enforcement of judgements, and the former was not.

Judges:

Jacob J

Citations:

[2003] EWHC 1243 (Ch), [2004] 3 All ER 406

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Nasser v United Bank of Kuwait CA 11-Apr-2001
The claimant, a foreign resident, alleged that her jewels had been stolen from a deposit box while in possession of the defendants. The defendants sought security for costs.
Held: An order for security may not legitimately be based on the bare . .
Cited – Aines Asset Management v Kazakhstan Investment Fund ChD 2002
The company was incorporated in a non-Convention country, namely the Cayman Islands. It had no assets in the Cayman Islands and all its assets were in Kazakhstan.
Held: Mr Moss rejected a submission that one should look at only the ability to . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 August 2022; Ref: scu.263720

Hambro and Others v The Duke of Marlborough and Others: ChD 25 Mar 1994

A scheme to transfer benefits without consent of the beneficiary was approved. The court may vary trusts against the wishes of a beneficiary even of full age and capacity.

Citations:

Gazette 22-Jun-1994, Independent 15-Apr-1994, Times 25-Mar-1994

Statutes:

Settled Land Act 1925 64

Jurisdiction:

England and Wales

Trusts

Updated: 05 August 2022; Ref: scu.81188

Stannard v Fisons Ltd; Stannard v Fisons Pensions Trust: CA 2 Jan 1990

The purchaser of a business said that the company had made insufficient contributions to its pensions fund before the transfer, and sought payment of the sums underpaid. The defendants argued that, applying Hastings-Bass, unless that principle were satisfied, the trustees’ decision as to the amount to be transferred should not be disturbed.
Held: Hastings-Bass and Mettoy involved the voluntary exercise by trustees of a discretion, whereas here the trustees were under an obligation to exercise their discretion at a particular time and after fulfilling a given condition. Having found that they had not complied with that obligation, so that the question was how their failure to perform that obligation should be remedied.

Citations:

[1990] 1 PLR 179, (1992) IRLR 27, [1991] Pen LR 225

Jurisdiction:

England and Wales

Citing:

Distinguished – Mettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .

Cited by:

Appeal from – Stannard v Fisons Pension Trust Limited CA 1991
Fisons had sold their fertiliser division to Norsk Hydro. Acting on advice of actuaries and thinking that the fund was in deficit, the trustees made a transfer to a new fund to provide for pensions of transferring employees in accordance with a . .
Cited – Pitt 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 . .
Cited – Futter 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, Equity

Updated: 05 August 2022; Ref: scu.245022

McKenzie vNutter: ScSf 2007

A cohabiting couple had bought a house in joint names. They intended to live together as a couple in the property, and that they would both sell their own separate houses and apply the proceeds towards the purchase of their new home. In the event only one of them contributed the proceeds of his house towards its purchase and paid the costs associated with maintaining and improving the property. The other continued to reside in her own house, which due to her bad faith she did not sell. She then insisted on a division and sale of the property. Following the state of the title, the expectation was that when the property was sold the proceeds would be paid to the parties equally.
Held: The party who had contributed everything towards its purchase and upkeep was to be entitled to recover the other party’s share of the proceeds, on the ground that she had been unjustly enriched because the condition on which the enrichment was given, due to her bad faith, did not materialise.

Judges:

Sheriff Principal Lockhart

Citations:

2007 SLT (Sh Ct) 17

Jurisdiction:

Scotland

Cited by:

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

Trusts, Family

Updated: 04 August 2022; Ref: scu.251491

Buchanan and Spouse v Eaton: HL 30 Mar 1911

Circumstances in which held ( rev. judgment of the Second Division) that a trustee had not been guilty of maladministration so as to render himself personally liable, although the entire trust funds had now disappeared, and he had paid in 1898 a considerable sum to compromise proceedings against the trust threatened at the instigation of certain disinherited children of the truster, and had borrowed money on the heritable estate for this purpose without the annuities payable under the trust-deed being made a charge upon it.

Judges:

Lord Chancellor (Loreburn), the Earl Of Halsbury, Lord Atkinson, and Lord Shaw

Citations:

[1911] UKHL 481, 48 SLR 481

Links:

Bailii

Jurisdiction:

Scotland

Trusts

Updated: 03 August 2022; Ref: scu.619188

Fordyce v Sir Henry Bridges, Catherine Elizabeth Mary Reid, Madeline Curling, Jane Curling, Isabella Curling, Agnes Catherine Thomson, Mary Louisa Thomson, Emily Harriet Thomson, Gertrude Eliza Thomson, Florence Jessie Thomson, And Jo: 15 Mar 1848

If all the heirs of a Scotch entail were necessary parties to a suit in this Court, touching matters in which they are interested as such heirs of entail, the suit could not proceed, not only on account of their number, but because future heirs of entail coming into esse would not be bound by any proceedings in it, as their claim is not through any persons parties to the suit.
As you cannot have, in any shape, before the Court all the heirs of entail whom you seek to bind, it would be idle to prove that some are out of the jurisdiction.
When, to avoid a failure of justice in the Court from the peculiar nature of the interest under a Scotch entail, it shall become necessary to decide the point [as to making all the heirs of a Scotch entail parties to a suit], some rule must be laid down, for which there is no precedent.
Not possible to dispute the proposition, that the heir of a Scotch entail is not bound by the proceedings in a suit to which he was no parly, he claiming under the entail, and not deriving title through anyone, a party to the suit, and having a direct interest in the subject of that suit in his own right, though not in possession.
Although the heir is not bound by the proceedings in such suit, he cannot have a decree in his own suit, unless he can shew that he was injured by the former decree, or has interests inconsistent with its directions.

Citations:

[1848] EngR 347 (C), (1847-1848) 2 Coop T Cott 325

Links:

Commonlii

Jurisdiction:

Scotland

Trusts, Land

Updated: 03 August 2022; Ref: scu.299897

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

Jurisdiction:

England and Wales

Citing:

Appeal from – Re 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 to – Re 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 – Murad 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 . .
Cited – Halton 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 . .
Cited – Rolls-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: 31 July 2022; Ref: scu.222820

Mason and others v Coleman and others: ChD 4 Dec 2007

Application for the Court to determine a number of outstanding issues relating to the costs of these proceedings. The proceedings were a claim for an account and other information brought by beneficiaries against trustees.

Citations:

[2007] EWHC 3070 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Costs – Mason and others v Coleman and others (Costs) ChD 4-Dec-2007
. .
Lists of cited by and citing cases may be incomplete.

Costs, Trusts

Updated: 28 July 2022; Ref: scu.262963

Peter v Beblow: 25 Mar 1993

Supreme Court of Canada – Family law – Trusts – Constructive trust – Long-term common law relationship – Unpaid homemaker – Homemaker maintaining and improving property – Whether proprietary link necessary to constructive trust established – Whether consideration to be given to the extent to which the remedy of constructive trust should be applied in terms of amount or proportion.

Citations:

[1993] 1 SCR 980, 1993 CanLII 126 (SCC)
Document, 101 DLR (4th) 621

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 26 July 2022; Ref: scu.640870

Time Products Ltd v Combined English Stores: 2 Dec 1974

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

Judges:

Oliver J

Citations:

Unreported, 2 December 1974

Jurisdiction:

England and Wales

Cited by:

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

Land, Trusts

Updated: 26 July 2022; Ref: scu.276429

Painter v Hutchison and Another: ChD 3 Apr 2007

The court was asked whether the illegal intention behind the execution of a declaration of trust had been carried into effect to the extent that it prevented P from asserting that a declaration of trust in relation to a property was a sham and that she was in fact the beneficial owner of the property.
Held: Although both P and her husband had said that the reason behind the execution of the trust was to distance the property from the Inland Revenue, that had not actually happened. Amongst other things, the declaration of trust was never shown to the Inland Revenue and P had declared the property to them as her asset. She was not prevented from asserting that the property was hers.

Judges:

Lewison J

Citations:

[2007] EWHC 758 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – SQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
Lists of cited by and citing cases may be incomplete.

Company, Land, Trusts

Updated: 25 July 2022; Ref: scu.250707

SA v WI: Admn 4 Jul 2007

The claimant sought a declaration that the second defendant holds andpound;12,000 which the claimant paid to the first defendant in his capacity as a hawaladar on trust for the claimant. The claim raises two issues: firstly, did the first defendant hold this andpound;12,000 on trust for the claimant; and secondly, if the answer to that question is yes, is the trust enforceable against the second defendant?

Judges:

Sullivan J

Citations:

[2007] EWHC 2025 (Admin), [2008] Bus LR 168, [2007] ACD 88

Links:

Bailii

Trusts

Updated: 24 July 2022; Ref: scu.331110

Schulman v Hewson and others: ChD 2002

Blackburne J assumed that a plea of accessory liability was covered by s.21(1)(a).

Judges:

Blackburne J

Citations:

[2002] EWHC 855 (Ch)

Statutes:

Limitation Act 1980 21(1)(a)

Jurisdiction:

England and Wales

Cited by:

Cited – Williams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 24 July 2022; Ref: scu.537032

Independent Trustee Services Ltd v Hope and Others: ChD 10 Nov 2009

The applicants were trustees of a pension scheme who sought directions from the court, wishing to buy annuities for scheme members. The proposal sought to maximise the benefit of the Pension Protection Fund.
Held: It was not a proper exercise of the Trustees’ powers to apply a disproportionately large part of the fund in anticipation of relying on future payments from the Fund. The Fund was designed to compensate for lost funds and operated as a fund of last resort. The proposal fell well outside the range of proper applications of funds even though it was not in breach of any express term of the trust.

Judges:

Henderson J

Citations:

[2009] EWHC 2810 (Ch), Times 18-Nov-2009

Links:

Bailii

Statutes:

Pensions Act 2004

Jurisdiction:

England and Wales

Financial Services, Trusts

Updated: 23 July 2022; Ref: scu.377850

Rogge and Another v Rogge and Others: ChD 23 Jul 2019

Part 8 Claim seeking an order setting aside all transfers by the Claimants prior to 27th November 2015 to the trust known as the Stefan Rogge Discretionary Trust and a declaration that the sums transferred to the Trust after 27th November 2015 are held on resulting trust.

Citations:

[2019] EWHC 1949 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Trusts

Updated: 23 July 2022; Ref: scu.640079

Adekunle and Others v Ritchie: Misc 17 Aug 2007

(Leeds County Court) An enfranchised freehold was in joint names because the elderly tenant could not obtain a mortgage on her own.

Judges:

Behrens J

Citations:

[2007] 2 P and CR DG20, [2007] BPIR 1177, (2007) 104(35) LSG 36, [2007] EW Misc 5 (EWCC), [2007] WTLR 1505

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 22 July 2022; Ref: scu.406759

Barrett v Barrett: ChD 19 May 2008

Claim against receiver that bankrupt’s property was held as trustee in trust for claimant. The illegal purpose was to conceal T’s interest in the proceeds of sale from the trustee in bankruptcy thus preventing him from laying claim to property which the bankrupt (as T was) acquires after his bankruptcy commences.
Held: ‘Mr Maynard submits that the tainted motive in this case is too remote to bar enforcement of T’s interest in the property or its proceeds. He points out correctly that the pleaded agreement or arrangement involved the creation of a new interest in favour of T, his original interest in the property having vested in his trustee in bankruptcy. The creation of such an interest was not of itself unlawful. The illegality lay in the failure to disclose the acquisition of this new interest to his trustee in bankruptcy.’

Citations:

[2008] EWHC 1061 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – SQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 21 July 2022; Ref: scu.267983

Mahme Trust Reg and others v Lloyds TSB Bank Plc: ChD 5 Jul 2006

Citations:

[2006] EWHC 1321 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Mahme Trust v Lloyds TSB Bank plc ChD 29-Jul-2004
The claimant began an action in England. The defendant sought a stay, saying the appropriate forum was Switzerland.
Held: The defendant was a truly multi-national orgaisation and had branches in many countries. The choice of forum belongs to . .
Lists of cited by and citing cases may be incomplete.

Banking, Trusts

Updated: 21 July 2022; Ref: scu.243051

Re H deceased: CA 1991

The Plaintiff had stabbed his wife to death when under the illusion, induced by a reaction to an anti-depressant drug, that she had just committed an act of infidelity. At his trial, a plea to guilty of manslaughter by reason of diminished responsibility was accepted. A hospital order was made and the trial judge expressed the view that ‘there was no responsibility left at all’.
Held: The forfeiture rule was not applied. The court made a comprehensive review of the authorities and asked: ‘Was Mr H guilty of deliberate, intentional and unlawful violence or threats of violence?’ He answered the question in the negative holding that the offender was ‘not responsible for his acts which were not deliberate or intentional.’ In those ‘highly unusual circumstances’ the Judge held that, on the Gray-v- Barr test, the forfeiture rule had no application.

Judges:

Peter Gibson J

Citations:

[1991] FLR 441

Jurisdiction:

England and Wales

Citing:

Cited – Davitt v Titcumb ChD 1989
The defendant bought a house in joint names with the deceased, but was subsequently convicted of her murder. The house was purchased with the assistance of an endowment life policy in their joint names. Whilst he was imprisoned, the policy was used . .
Cited – Gray v Barr ChD 1970
The defendant had used a shotgun to threaten a man and the gun had accidentally gone off and killed him. The issue was whether the defendant could recover in respect of his liability under a policy of insurance. .
Held: The rule of public . .

Cited by:

Cited – Dunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Updated: 21 July 2022; Ref: scu.185185

In re Berchtold: 1923

Citations:

[1923] 1 Ch 192

Jurisdiction:

England and Wales

Cited by:

Cited – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 21 July 2022; Ref: scu.640388

John Robertson of Goodlyburn, A Pauper v George Earl of Kinnoul: HL 5 Jul 1721

Process. – Act and Commission – A pursuer opposes the granting an act and commission for examining the defender, a peer in London, in a matter referred to his oath, on the ground that he being old and poor, could not follow the examination: but the commission is granted notwithstanding.
Trust – A person executes an absolute surrender of his feu, in favour of his superior’s son, but alleging qualifications of trust in a separate verbal agreement, the superior swears that he remembered no term of depositation, and the son, the grantee, swears, that he personally gave no consideration for the deed, and that it was not delivered to him, but that every thing was transacted by his father; and he never heard of any conditions or trust: it is found that the depositions did not support the allegations of trust.

Citations:

[1721] UKHL Robertson – 394, (1721) Robertson 394

Links:

Bailii

Jurisdiction:

Scotland

Trusts

Updated: 21 July 2022; Ref: scu.553676

Random House UK Ltd v Allason and others: ChD 11 Dec 2008

The now defendants had lost their action for copyright infringement, and the now claimant sought to enforce the costs order made in their favour. The defendant denied ownership of any assets, but the claimant said that various properties were held in trust for him.

Judges:

David Richards J

Citations:

[2008] EWHC 2854 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Costs, Trusts, Insolvency

Updated: 21 July 2022; Ref: scu.278968

English v Dedham Vale Properties Ltd: ChD 1978

A prospective purchaser of a property had applied for planning permission in the name of the vendor without telling the vendor what it was doing.
Held: The purchaser could fairly and accurately be described, as Slade J described the purchaser, as a ‘self-appointed agent’ for the vendor. As such the purchaser did owe fiduciary obligations to the vendor, and was liable to account for any profit made as a result of the self-appointed agency.
The categories of fiduciary relationships are not closed

Judges:

Slade J

Citations:

[1978] 1 WLR 93, [1978] 1 All ER 382

Jurisdiction:

England and Wales

Cited by:

Cited – OBG 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, Agency

Updated: 19 July 2022; Ref: scu.223009

Dexter Ltd (In Administrative Receivership) v Harley: ChD 2 Apr 2001

Money was transferred wrongfully out of the company, and then on again into the hands of the respondent. She received the money, and knew of its fraudulent provenance, but all her acts were committed outside the jurisdiction.
Held: It was not sufficient that the original act in breach of trust occurred within the jurisdiction, the claimant had to show that some act of the defendant had occurred here, if she was to be sued here.

Citations:

Times 02-Apr-2001

Statutes:

Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968) (Cmnd 7395)

Jurisdiction:

England and Wales

Trusts, Banking, Jurisdiction

Updated: 19 July 2022; Ref: scu.79951

Attorney General v Jewish Colonisation Association: 1901

Citations:

[1901] 1 QB 123

Jurisdiction:

England and Wales

Cited by:

Cited – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 19 July 2022; Ref: scu.640398