Category: Trusts

Attorney General v Jewish Colonization Association: 1901

The court was asked whether on the death of the settlor and the termination of his life interest, the foreign shares held on trust were taxable as on a succession.

Citations:

[1901] 1 QB 123

Statutes:

Succession Duty Act 1853 2

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.640389

Cuppage and Others v Lawson and Others: ChD 14 Jul 2010

The Court considered beneficial entitlement to the proceeds of sale of land and buildings which formerly comprised the site of the former East Grinstead Social Club.

Judges:

Hodge QC J

Citations:

[2010] EWHC 3785 (Ch)

Links:

Bailii

Statutes:

Charitable Trusts (Validation) Act 1954, Recreational Charities Act 1958

Jurisdiction:

England and Wales

Charity, Trusts

Updated: 19 July 2022; Ref: scu.439798

Luxe Holding Ltd v Midland Resources Holding Ltd: ChD 23 Jul 2010

Midland agreed to sell to Luxe shares in 20 companies, 17 of which were incorporated in Russia or the Ukraine, with the lex situs of the shares in them being also there. Midland defaulted, sold the shares in the Russian and Ukrainian companies elsewhere and, when sued by Luxe, argued that, since Russian and Ukrainian law did not recognise the concept of a beneficial interest at all, and since ‘questions of ownership and therefore proprietary interests in shares are governed by the lex situs of the companies’, it followed that ‘whatever might have been the position if these had been shares in English companies, there were no beneficial interests in the shares which could pass to Luxe’ under the share sale agreement.
Held: Roth J noted that the ‘sort of trust, and thus beneficial interest’ which arises on the sale of land or of shares in private companies, ‘arises only because the agreement is specifically enforceable’ and is ‘In a sense, therefore, … the corollary of the remedy of specific performance’ and ‘is not a full trust in the classic sense’
After referring to Lake v Bayliss, Roth J analysed the law: ‘ Is the application of these principles precluded by the fact that the property is held through subsidiaries in a country the law of which does not recognise the concept of a lesser proprietary interest or that it does not recognise a beneficial interest at all? The fact that Midland held the shares through subsidiaries does not in itself preclude the sale and purchase agreement from being specifically enforceable, as Midland for present purposes accepts. The obligation to be enforced would be that Midland must procure that the shares are transferred. I do not see that this in itself would prevent the qualified trust relationship from arising.
Does the applicability of the lex situs to questions of ownership alter the position as between the contracting parties? It is trite but nonetheless important to recall that equity acts in personam. The parties here have chosen to govern the relationship as between themselves according to English law. Unless precluded by authority, it seems to me that as a matter of principle where the parties have expressly chosen English law and the exclusive jurisdiction of the English court, they have voluntarily subjected themselves to the English system of remedies. In my judgment, it is at the very least well arguable, and if necessary I would hold, that this includes the ‘qualified trusteeship’ that applies as the corollary in such a case to the availability of specific performance, unless that gave rise to a situation that was directly contrary to the lex situs in the sense of interfering with the operation of the local law.’
And: ‘I do not consider that the reasoning in Lightning is confined to the particular case of a resulting trust. On the contrary, it seems to me of general application. And the observation made by Millett LJ resonates in the present case, since three of the 20 companies of which Midland sold its shareholding were Guernsey or Irish companies, for which as I apprehend the lex situs recognises a beneficial interest. As it happens, those companies are of negligible value, but that obviously cannot affect the principle. If Midland’s analysis were correct, the English court would find that Luxe had acquired as against Midland a beneficial interest in those shares but not in the shares of the other companies incorporated under a different system of law, and that it would thus have a very limited proprietary claim.
Moreover, it is accepted by Luxe that any beneficial interest in the shares sold to Troika was destroyed or terminated by that sale. Its claim is to the proceeds in Midland’s hands. Thus no interference with property transfers under Ukrainian (or Russian) law is involved. There is no reason why equity, acting on the conscience of Midland as a proper defendant to English proceedings, cannot require that Midland holds those moneys for the benefit of Luxe.’

Judges:

Roth J

Citations:

[2010] EWHC 1908 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Orr Ewing v John Orr Ewing and Co and Orr Ewing’s Trustees HL 5-Dec-1882
A contract of copartnery provided that in the event of the death of any of the partners the surviving and solvent partners who should continue the business should pay out to the representatives of the deceased the amount at his credit in the books . .
Cited – Deschamps v Miller 1908
The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband . .
Cited – Lake v Bayliss 1974
As to the sale of land: ‘ It is by reason of this trusteeship that the vendor who breaks his contract of sale by reselling to someone else has been held to be accountable to the first intended purchaser for the proceeds of sale.’ . .
Cited – Lightning v Lightning Electrical Contractors Ltd CA 1998
Mr K asserted beneficial ownership under a resulting trust over land in Scotland bought by an English company to which he had advanced the purchase price. Scots law, the lex situs of the land, did not recognise any equitable interest. The company . .

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.

Company, Trusts

Updated: 19 July 2022; Ref: scu.421057

Lightning v Lightning Electrical Contractors Ltd: CA 1998

Mr K asserted beneficial ownership under a resulting trust over land in Scotland bought by an English company to which he had advanced the purchase price. Scots law, the lex situs of the land, did not recognise any equitable interest. The company having gone into receivership.
Held: A declaration was granted in these English proceedings that the property or its proceeds of sale were held on trust for him: ‘No event governed by Scottish law [had] occurred whereby any equity arising under English law was destroyed.’
Miller LJ said: ‘If A provides money to B, both being resident in England, to purchase landed property in his own name but for and on A’s behalf, and B does so, the consequences of that transaction are governed by English law. It would be absurd if they were governed by the law of the place where the property in question happened to be located.
Such a rule would lead to bizarre results if, for example, A’s instructions were to buy properties in more than one jurisdiction, for the consequences of the same arrangement might then be different in relation to the different properties acquired. It would also lead to bizarre results if A left it to B’s discretion to choose the property to be acquired, since that would give B the unilateral power to decide on the legal consequences of the transaction which he had entered into with A.’

Judges:

Peter Gibson, Henry and Millett LJJ

Citations:

(1998) 23(1) Tru LI 35

Jurisdiction:

England and Wales

Citing:

Dictum approved – Deschamps v Miller 1908
The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband . .

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 . .
Cited – Luxe Holding Ltd v Midland Resources Holding Ltd ChD 23-Jul-2010
Midland agreed to sell to Luxe shares in 20 companies, 17 of which were incorporated in Russia or the Ukraine, with the lex situs of the shares in them being also there. Midland defaulted, sold the shares in the Russian and Ukrainian companies . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 July 2022; Ref: scu.640391

Lake v Bayliss: 1974

As to the sale of land: ‘ It is by reason of this trusteeship that the vendor who breaks his contract of sale by reselling to someone else has been held to be accountable to the first intended purchaser for the proceeds of sale.’

Citations:

[1974] 1 WLR 1073

Jurisdiction:

England and Wales

Cited by:

Cited – Luxe Holding Ltd v Midland Resources Holding Ltd ChD 23-Jul-2010
Midland agreed to sell to Luxe shares in 20 companies, 17 of which were incorporated in Russia or the Ukraine, with the lex situs of the shares in them being also there. Midland defaulted, sold the shares in the Russian and Ukrainian companies . .
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.

Company, Trusts

Updated: 18 July 2022; Ref: scu.640392

British South Africa Co v De Beers Consolidated Mines Ltd: CA 1910

The equitable rule against clogging the equity of redemption of a mortgage applied to a contract governed by English law and would be enforced against a contracting party as regards land abroad in a state where the equity of redemption may not be recognised.
Cozens-Hardy MR said: ‘For centuries the Court of Chancery has, by virtue of its jurisdiction in personam, applied against parties to a contract or trust relating to foreign land the principles of English law, although the lex situs did not recognize such principles. … If indeed the law of the country where the land is situate should not permit or not enable the defendant to do what the court might otherwise think it right to decree, it would be useless and unjust to direct him to do the act; but when there is no such impediment the courts of this country, in the exercise of their jurisdiction over contracts made here, or in administering equities between parties residing here, act upon their own rules, and are not influenced by any consideration of what the effect of such contracts might be in the country where the lands are situate, or of the manner in which the courts of such countries might deal with such equities.
To take a simple case, if A by an English contract agreed to give a mortgage to secure an English debt upon land in a foreign country, the law of which country does not recognize the existence of what we call an equity of redemption, which was the case of our common law, and if a mortgage was given and duly perfected according to the lex situs, I feel no doubt that our courts would restrain the mortgagee from exercising the rights given by the foreign law and would treat the transaction as a mortgage in the sense in which that word is used by us. In doing this our courts would not in any way interfere with the lex situs, but would by injunction, and if necessary by process of contempt, restrain the mortgagee from asserting those rights. Similar observations would apply to a trustee, if the lex situs does not recognize trusts.’

Judges:

Cozens-Hardy MR L

Citations:

[1910] 2 Ch 502

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.

Equity, Trusts, International

Updated: 18 July 2022; Ref: scu.640390

Malik v Malik: ChD 21 Jun 2019

Rolled-up hearing of an application for permission to appeal and, if permission is granted, appeal against a decision in a very long-running dispute between members of the Malik family about the ownership of a valuable long leasehold flat in Central London.

Judges:

Falk J

Citations:

[2019] EWHC 1843 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Trusts

Updated: 18 July 2022; Ref: scu.640060

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 company, but Saudi law would not recognise such trusts. The shares had been transferred to the defendants, and the liquidators now sought to have the transfer set aside as having been in breach of trust.
Held: Samba’s appeal succeeded. The transfer to Samba did not dispose of any rights belonging to SICL within the meaning of s. 127.
In the eyes of English law, a trust may be created, exist and be enforceable in respect of assets located in a jurisdiction, the law of which does not recognise trusts in any form.
At common law, the interest created by a trust depends on the law governing the trust. The lex situs may treat a disposition of shares to a third party as overriding any interest of the beneficiary in the shares. Even so, a common law trust may exist in respect of those shares. A trust can be created, exist and be enforced in respect of assets located in a jurisdiction such as Saudi Arabia, the law of which does not recognise trusts in any form.
The Hague Convention does not change this conclusion, since one of its aims was exactly to provide for the recognition of trusts in jurisdictions which did not themselves know of the institution.

Judges:

Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Toulson, Lord Collins

Citations:

[2017] 1 BCLC 151, [2017] WTLR 373, [2017] UKSC 6, [2017] WLR(D) 57, [2017] 2 All ER 799, [2017] 2 WLR 713, [2017] 2 All ER (Comm) 97, [2017] BPIR 263, [2017] AC 424, UKSC 2015/0009

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Video Summary

Statutes:

Cross-Border Insolvency Regulations 2006, Insolvency Act 1986 127 436

Jurisdiction:

England and Wales

Citing:

At First Instance – Akers and Others v Samba Financial Group ChD 28-Feb-2014
Samba sought a stay of insolvency proceedings. Shares in a Saudi company were held in trust by a company registered in Cayman. Upon that company going into liquidation, the shares were transferred to the defendant, who now argued that since Saudi . .
Appeal from – Akers and Others v Samba Financial Group CA 4-Dec-2014
Shares in a Saudi company were held I trust for a Cayman company which had gone into liquidation. Saudi law did not recognise such trusts, and the parties now disputed which was the forum conveniens.
Held: The liquidators’ appeal succeeded. . .
Cited – Orr Ewing v John Orr Ewing and Co and Orr Ewing’s Trustees HL 5-Dec-1882
A contract of copartnery provided that in the event of the death of any of the partners the surviving and solvent partners who should continue the business should pay out to the representatives of the deceased the amount at his credit in the books . .
Cited – Attorney General v Jewish Colonization Association 1901
The court was asked whether on the death of the settlor and the termination of his life interest, the foreign shares held on trust were taxable as on a succession. . .
Cited – British South Africa Co v De Beers Consolidated Mines Ltd CA 1910
The equitable rule against clogging the equity of redemption of a mortgage applied to a contract governed by English law and would be enforced against a contracting party as regards land abroad in a state where the equity of redemption may not be . .
Cited – In re Berchtold 1923
. .
Cited – Archer Shee v Garland HL 15-Dec-1930
The parties disputed the taxpayer’s liability to income tax on income coming due to her on an American based family trust.
Held: A beneficiary in a fully administered deceased estate has an equitable interest in property which is the subject . .
Cited – Westdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
Cited – Duke of Marlborough v Attorney General 1945
The Court was asked whether foreign shares held on trust were taxable as on a succession on the death of the beneficiary of the trust.
Held: The proper law of a marriage settlement ‘can only be the law by reference to which the settlement as . .
Cited – Re Philipson-Stow HL 1961
The section excluded from liability for estate duty property ‘passing on the death which is situate out of Great Britain if it is shown that the proper law regulating the devolution of the property situate, or the disposition under or by reason of . .
Cited – Macmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) ChD 1-Jul-1993
Bona fide chargees for value of shares situated in New York and held on trust for Macmillan were able, by application of New York law, to take the shares free of Macmillan’s prior equitable interest of which the chargees had had no notice. Where . .
Cited – Deschamps v Miller 1908
The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband . .
Cited – Deschamps v Miller 1908
The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband . .
Cited – Lake v Bayliss 1974
As to the sale of land: ‘ It is by reason of this trusteeship that the vendor who breaks his contract of sale by reselling to someone else has been held to be accountable to the first intended purchaser for the proceeds of sale.’ . .
Cited – Lightning v Lightning Electrical Contractors Ltd CA 1998
Mr K asserted beneficial ownership under a resulting trust over land in Scotland bought by an English company to which he had advanced the purchase price. Scots law, the lex situs of the land, did not recognise any equitable interest. The company . .
Cited – Luxe Holding Ltd v Midland Resources Holding Ltd ChD 23-Jul-2010
Midland agreed to sell to Luxe shares in 20 companies, 17 of which were incorporated in Russia or the Ukraine, with the lex situs of the shares in them being also there. Midland defaulted, sold the shares in the Russian and Ukrainian companies . .
Cited – Bristol Airport Plc and Another v Powdrill and Others CA 21-Dec-1989
An airline company went into administration. The airport seized two airplanes. The administrators claimed they were property within the administration, could not be seized without a court order, and the court should exercise its discretion not to . .
Cited – Clark and Whitehouse (Joint Administrators of Rangers Football Club Plc), Re Directions SCS 23-Mar-2012
(Outer House) Contracts were made in 2011 and subject to English law, between Rangers and two English limited liability partnerships (together ‘Ticketus’). Under the contracts, Ticketus had paid Rangers large sums for future tranches of season . .
Cited – Glasgow City Council v Springboig St John’s School and Another SCS 27-Mar-2014
The civil law concept of patrimony has been developed to explain the protection of trust property held by a trustee against claims by the trustee’s personal creditors . .
Cited – Saunders v Vautier 7-May-1841
A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of . .
Cited – Ayerst (Inspector of Taxes) v C and K (Construction) Ltd HL 1976
A resolution or order for winding up of a company divests it of the beneficial interest in its assets. They become a fund which the company thereafter holds in trust to discharge its liabilities. Where a company is wound up in this country, its . .
Cited – Independent Trustee Services Ltd v GP Noble Trustees Ltd and Others CA 28-Feb-2012
Lloyd LJ said: ‘a transferee of the legal title to property under a disposition made in breach of trust, or a successor in title to such a person, does not have the beneficial title to the property, which remains held on the original trusts, unless . .
Cited – Independent Trustee Services Ltd v GP Noble Trustees Ltd and Others CA 28-Feb-2012
Lloyd LJ said: ‘a transferee of the legal title to property under a disposition made in breach of trust, or a successor in title to such a person, does not have the beneficial title to the property, which remains held on the original trusts, unless . .
Cited – In re Earl Leven, Inland Revenue Comrs v Williams Deacon’s Bank Ltd ChD 1954
Wynn-Parry J said: ‘the word ‘disposition’, taken by itself, and used in its most extended meaning, is no doubt wide enough to include the act of extinguishment’, but he rejected such a wide interpretation of that word in the Finance Act 1940, . .
Cited – Inland Revenue Commissioners v Buchanan CA 1958
The surrender of a life interest under a will trust in favour of those people entitled in remainder operated as a ‘disposition’ of that life interest for the purposes of sections 20 and 21 of the Finance Act 1943.
Jenkins LJ specifically . .
Cited – Re Mal Bower’s Macquarie Electrical Centre Pty Ltd (in liquidation) 1974
The liquidator made a claim against the bank for the amount of the Payments had been made out of the company’s bank account between the date of the petition and the date of the order and the date when the account was subsequently closed.
Held: . .
Cited – In re J Leslie Engineers Co Ltd 1976
The director of a company between presentation of a petition to wind up and the making of the order paid over pounds 1050 to a creditor for work done. Of this sum, pounds 800 was paid by way of a cheque drawn on the personal account of the director . .
Cited – Bristol Airport Plc and Another v Powdrill and Others CA 21-Dec-1989
An airline company went into administration. The airport seized two airplanes. The administrators claimed they were property within the administration, could not be seized without a court order, and the court should exercise its discretion not to . .
Cited – Re S A and D Wright Ltd, Denney v John Hudson and Co Ltd CA 1992
Fox LJ said: ‘A disposition carried out in good faith in the ordinary course of business at a time when the parties were unaware that a petition had been presented would usually be validated by the court unless there is ground for thinking that the . .
Cited – El Ajou v Dollar Land Holdings Ltd CA 2-Dec-1993
The court was asked whether, for the purposes of establishing a company’s liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company.
Held: . .
Cited – Express Electrical Distributors Ltd v Beavis and Others CA 19-Jul-2016
Sales LJ said: validation will ordinarily only be granted ‘if there is some special circumstance which shows that the disposition in question … has been … for the benefit of the general body of unsecured creditors’. . .
Cited – Attorney General v Jewish Colonisation Association 1901
. .
Cited – Cook Industries Inc v Galliher ChD 1979
The plaintiff claimed a declaration that the defendants held a flat in Paris together with its contents in trust for the plaintiff, and made an order compelling the defendants to allow the plaintiff to inspect the flat. The fact that the . .
Lists of cited by and citing cases may be incomplete.

Trusts, International

Updated: 18 July 2022; Ref: scu.573799

Akers and Others v Samba Financial Group: CA 4 Dec 2014

Shares in a Saudi company were held I trust for a Cayman company which had gone into liquidation. Saudi law did not recognise such trusts, and the parties now disputed which was the forum conveniens.
Held: The liquidators’ appeal succeeded. Since Cayman Islands law recognised the division of the legal and beneficial interests in shares the trusts were arguably valid, even though ownership of the shares as registered in Saudi Arabia were governed by the lex situs, Saudi law. However the beneficiary’s claim under the trust was with England and Wales jurisdiction by the 1987 Act.
‘Provided that the property that is made the subject of a trust can be alienated at all under the lex situs, questions as to the validity and effect of placing such assets in trust, even though the assets are shares in a civil law jurisdiction, can be determined by the governing law of the trust. To put the matter in the context of this case, the declarations of trust will not be dividing the equitable and legal interests in the shares under Saudi Arabian law. That is not possible. But the declarations of trust may give SICL rights under the trust in respect of those shares that will have to be determined by the governing law of the trust, taking into account that under Saudi Arabian law a division of equitable and legal interests is not possible. All these matters will have to be worked out at the next stage of this litigation when the court comes to consider the effect on the rights granted by the declarations of trust of the transfer to Samba which took effect under Saudi Arabian law.’

Judges:

Longmore, Kitchin, Vos LJJ

Citations:

[2014] EWCA Civ 1516, [2015] 2 WLR 1281, [2015] BPIR 411, [2014] WLR(D) 521, [2015] WTLR 931, 17 ITELR 921

Links:

Bailii, WLRD

Statutes:

Recognition of Trusts Act 1987

Jurisdiction:

England and Wales

Citing:

Appeal from – Akers and Others v Samba Financial Group ChD 28-Feb-2014
Samba sought a stay of insolvency proceedings. Shares in a Saudi company were held in trust by a company registered in Cayman. Upon that company going into liquidation, the shares were transferred to the defendant, who now argued that since Saudi . .

Cited by:

Appeal from – 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, International

Updated: 18 July 2022; Ref: scu.539584

Glasgow City Council v Springboig St John’s School and Another: SCS 27 Mar 2014

The civil law concept of patrimony has been developed to explain the protection of trust property held by a trustee against claims by the trustee’s personal creditors

Judges:

Lord Malcolm

Citations:

[2014] ScotCS CSOH – 76

Links:

Bailii

Jurisdiction:

Scotland

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: 18 July 2022; Ref: scu.524639

Independent Trustee Services Ltd v GP Noble Trustees Ltd and Others: CA 28 Feb 2012

Lloyd LJ said: ‘a transferee of the legal title to property under a disposition made in breach of trust, or a successor in title to such a person, does not have the beneficial title to the property, which remains held on the original trusts, unless either the transferee, or a successor in title, was a bona fide purchaser for value without notice. The trustee acting in breach of trust can transfer the legal title, but cannot vest the beneficial interest in the property in a bona fide purchaser for value without notice, since he does not own that title and is not acting in a way which enables him, under the trust, to overreach the beneficiaries’ equitable interest. Despite that inability, the availability of the bona fide purchaser defence means that a transaction in favour of a bona fide purchaser for value without notice is as effective as it would be if he could vest the beneficial title in the purchaser. Thereafter the purchaser can deal with the asset free from any prior claim of the beneficiaries.’

Judges:

Lloyd, Patten, Tomlinson LJJ

Citations:

[2012] EWCA Civ 195, [2012] WLR(D) 55, [2013] Ch 91, [2012] 3 WLR 597, [2012] 3 FCR 1, [2012] WTLR 1171, [2012] 3 All ER 210

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

See Also – Independent Trustee Services Ltd v GP Noble Trustees Ltd and Others ChD 26-Jan-2009
Application to vary a freezing order made on a without notice application.
Held: Lewison J set out the proper approach at para. 6 by setting out the four questions which should be addressed: ‘(1) does the claimant have an arguable proprietary . .
Appeal from – Independent Trustee Services Ltd v GP Noble Trustees Ltd and Others ChD 14-Dec-2010
An application was made under Part 3.1(7) to vary an earlier final order made by the judge after a trial, on the application of the wife of one of the defendants whose potential interest in funds subject to the judge’s order had been overlooked by . .

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 . .
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: 18 July 2022; Ref: scu.451678

Clark and Whitehouse (Joint Administrators of Rangers Football Club Plc), Re Directions: SCS 23 Mar 2012

(Outer House) Contracts were made in 2011 and subject to English law, between Rangers and two English limited liability partnerships (together ‘Ticketus’). Under the contracts, Ticketus had paid Rangers large sums for future tranches of season tickets in respect of a defined number of seats of different types at specified future matches in each of the seasons from 2011-2012 to 2014-2015. Rangers having gone into administration, its administrators applied for directions as to whether they could be prevented from terminating the contracts. Ticketus argued that they had acquired rights which were more than mere personal rights, and which could be enforced by specific performance.
Held: Lord Hodge held, first, relying on the travaux preparatoires (in particular paras 55 to 57 of the Explanatory Report prepared by Professor Alfred E von Overbeck), that the concept in article 4 of the Convention of a preliminary issue relating to the validity of an act by which assets were transferred to a trustee included an issue relating to the validity of a declaration of trust.
Whether the agreements between Rangers and Ticketus in respect of season tickets gave Ticketus more than purely personal rights was such an issue, and, third, that this issue fell accordingly outside the Convention and was to be determined under Scots private international law rules by reference to Scots law, as the lex situs of the future tickets to be issued and the stadium seats to which they related.
Lord Hodge said: ‘If I am correct in my conclusion that Scots law applies, the difficulty which Ticketus faces in asserting a trust over the proceeds of sale of the season tickets agreement tickets is that the proceeds do not yet exist. On the assumption that the Ticketus agreements are sufficient to amount to a declaration by Rangers of a trust over the STA tickets and the proceeds of their sale, the non-existence of both is fatal to the creation of a trust. Where the truster and trustee are the same person it is our law that there must be constructive delivery of the trust subjects to himself as trustee of an irrevocable trust: see Allan’s Trustees v Lord Advocate 1971 SC (HL) 45, in which Lord Reid at p 64 spoke of the doing of ‘something equivalent to delivery or transfer of the trust fund.”

Judges:

Lord Hodge

Citations:

[2012] ScotCS CSOH – 55, 2012 GWD 13-261, 2012 SLT 599

Links:

Bailii

Jurisdiction:

Scotland

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: 18 July 2022; Ref: scu.452645

in Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners: CA 2 Jan 1961

Judges:

Upjohn LJ

Citations:

[1961] Ch 488

Jurisdiction:

England and Wales

Citing:

See Also – In Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners ChD 1959
Whether Trust was void for perpetuity . .
See Also – In Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners CA 1961
. .

Cited by:

See Also – In 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, Equity

Updated: 18 July 2022; Ref: scu.402932

Duke of Marlborough v Attorney General: 1945

The Court was asked whether foreign shares held on trust were taxable as on a succession on the death of the beneficiary of the trust.
Held: The proper law of a marriage settlement ‘can only be the law by reference to which the settlement as made and which was intended by the parties to govern their rights and liabilities’. Though the governing law may be changed with the concurrence of the beneficiaries, it is not changed merely by a change in circumstances such as a change in the trusteeship.

Citations:

[1945] Ch 78

Statutes:

Succession Duty Act 1853 2

Jurisdiction:

England and Wales

Cited by:

Cited – Gomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .
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: 18 July 2022; Ref: scu.276694

Burnden Holdings (UK) Ltd v Fielding and Another: ChD 5 Sep 2014

The company sought to recover from the defendants, two former directors.
Held: The claim was statute barred.
Hodge QC dealt with the claimant’s reliance on section 32: ‘That leaves the claimant’s reliance upon section 32. There the difficulties that the claimant faces are that there are no facts sufficiently asserted to give rise, in my judgment, to any realistic prospect of relying upon either limb of section 32 of the 1980 Act. Given the knowledge and involvement on the part, in particular of the company’s auditors, I fail to see how it can be asserted either (1) that there was any deliberate commission of a breach of duty on the part of the defendants; or (2) that there had been any deliberate concealment from the claimant company of facts relevant to the claimant’s alleged right of action. I am afraid, from Mr Latimer’s point of view, that I just do not see how the claimant company can begin to get home in relation to either of those matters. In view of the involvement of the accountants and solicitors, there is no realistic prospect of establishing either the deliberate commission of a breach of duty or the deliberate concealment of any fact relevant to the claimant’s right of action.’

Judges:

Hodge QC HHJ

Citations:

[2014] EWHC 3356 (Ch)

Links:

Bailii

Statutes:

Companies Act 2006, Limitation Act 1980 2(1)(b) 32

Jurisdiction:

England and Wales

Cited by:

Appeal from – Burnden Holdings (UK) Ltd v Fielding and Another CA 17-Jun-2016
The company, now in liquidation sought to claim for the alledged misapplication by former directors of its funds in 2007. It now appealed against a summary rejection of its claim as time barred.
Held: The appeal succeeded. Section 21(1)(b) . .
Lists of cited by and citing cases may be incomplete.

Company, Trusts, Limitation

Updated: 18 July 2022; Ref: scu.538050

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

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

Judges:

Morritt J

Citations:

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

Jurisdiction:

England and Wales

Citing:

Cited – Dufour 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 . .
Cited – Lord Walpole v Lord Orford HL 1797
The court considered the difference between an obligation accepted in law, and what was described as ‘an honourable engagement’. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 18 July 2022; Ref: scu.81867

El Ajou v Dollar Land Holdings Ltd: CA 2 Dec 1993

The court was asked whether, for the purposes of establishing a company’s liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company.
Held: The company was fixed with the knowledge of its part-time chairman and a non-executive director, because he had acted as its directing mind and will for the particular purpose of arranging its receipt of the tainted funds. It was sufficient that the director had management and control so far as the receipt of the fraud was concerned, having made arrangements for the receipt and disposal of the money, even though he had no general managerial responsibility in the company.
Hoffmann LJ set out the ingredients of knowing receipt: ‘For this purpose the plaintiff must show, first a disposal of his assets in breach of fiduciary duty; secondly, the beneficial receipt by the defendant of assets which are traceable as representing the assets of the plaintiff; and thirdly, knowledge on the part of the defendant that the assets are traceable to a breach of fiduciary duty.’
When asking who was the controlling mind of a company, the relevant test is to find the person who had management and control in relation to the act or omission in point. The formal position or status as a director is relevant but not decisive. A ‘pragmatic’ approach is necessary: ‘Decided cases show that, in regard to the requisite status and authority, the formal position, as regulated by the company’s articles of association, service contracts and so forth, though highly relevant, may not be decisive. Here Millett J adopted a pragmatic approach. In my view he was right to do so, although it has led me, with diffidence, to a conclusion different from his own’ and ‘ . . different persons may for different purposes satisfy the requirements of being the company’s directing mind and will. ‘ The court considered the ingredients of the tort of ‘knowing receipt’: ‘For this purpose the plaintiff must show, first, a disposal of his assets in breach of fiduciary duty; secondly, the beneficial receipt by the defendant of assets which are traceable as representing the assets of the plaintiff; and thirdly, knowledge on the part of the defendant that the assets he received are traceable to a breach of fiduciary duty.’ (Hoffmann LJ)
Nourse LJ said: ‘The doctrine attributes to the company the mind and will of the natural person or persons who manage and control its actions. At that point, in the words of Millett J ([1993] 3 ALL ER 717 at 740): ‘Their minds are its mind; their intention its intention; their knowledge its knowledge.’ It is important to emphasise that management and control is not something to be considered generally or in the round. It is necessary to identify the natural person or persons having management and control in relation to the act or omission in point. This was well put by Eveleigh J in . . R v Andrews Weatherfoil Ltd . .
Decided cases show that, in regard to the requisite status and authority, the formal position, as regulated by the company’s articles of association, service contracts and so forth, though highly relevant, may not be decisive. Here Millett J adopted a pragmatic approach. In my view he was right to do so, although it has led me, with diffidence, to a conclusion different from his own.’

Judges:

Nourse, Rose, Hoffmann LJJ

Citations:

Times 03-Jan-1994, [1994] 2 All ER 685, [1993] EWCA Civ 4, [1994] BCC 143, [1994] 1 BCLC 464

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – El Ajou v Dollar Land Holdings Plc and Another ChD 3-Jan-1993
A non active director may still be company’s ‘directing mind’. The doctrine of attributing the actions of individuals to a company is that ‘Their minds are its mind; their intention its intention; their knowledge its knowledge.’
Tracing was no . .
Cited – Lennard’s Carrying Company Limited v Asiatic Petroleum Company Limited HL 1915
The House was asked as to when the acts of an individual became those of his employer under section 502 (‘any loss or damage happening without (the ship owner’s) actual fault or privity’).
Held: Viscount Haldane LC said: ‘It must be upon the . .
Cited – Regina v Andrews-Weatherfoil Ltd CACD 1972
For so long as it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another. Eveleigh J: ‘It is necessary . .

Cited by:

Applied – Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
Cited – Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
Cited – Mahonia Limited v JP Morgan Chase Bankwest Lb Ag QBD 3-Aug-2004
The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
Cited – Fassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
See Also – El Ajou v Dollar Land Holdings Plc ChD 1995
The tracing of assets into the hands of a third party depends upon a notional charge. There are no inflexible rules. The essential elements of ‘knowing receipt’ are: ‘For this purpose the plaintiff must show, first, a disposal of his assets in . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – KR and others v Royal and Sun Alliance Plc CA 3-Nov-2006
The insurer appealed findings of liability under the 1930 Act. Claims had been made for damages for child abuse in a residential home, whom they insured. The home had become insolvent, and the claimants had pursued the insurer.
Held: The . .
Cited – Charter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
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.

Company, Equity, Torts – Other, Trusts

Updated: 17 July 2022; Ref: scu.262615

Ayerst (Inspector of Taxes) v C and K (Construction) Ltd: HL 1976

A resolution or order for winding up of a company divests it of the beneficial interest in its assets. They become a fund which the company thereafter holds in trust to discharge its liabilities. Where a company is wound up in this country, its assets are held on terms that they must be applied in accordance with that statutory insolvency regime.
Lord Diplock spoke of the use of the expression ‘trust’ and ‘trust property’ in reference to the assets of a company in liquidation: ‘All that was intended to be conveyed by the use of the expression ‘trust property’ and ‘trust’ in these and subsequent cases (of which the most recent is Pritchard v. M.H. Builders (Wilmslow) Limited [1969] 1 WLR 409) was that the effect of the statute was to give to the property of a company in liquidation that essential characteristic which distinguished trust property from other property, viz., that it could not be used or disposed of by the legal owner for his own benefit, but must be used or disposed of for the benefit of other persons.’
Lord Diplock referred to the legal ownership of property subject to a trust as held by the trustee ‘not for his own benefit but for the benefit of the cestui que trust or beneficiaries’, but went on to say that: ‘Upon the creation of a trust in the strict sense as it was developed by equity the full ownership in the trust property was split into two constituent elements … the ‘legal ownership’ in the trustee, what came to be called the ‘beneficial ownership’ in the cestui que trust.’

Judges:

Lord Diplock

Citations:

[1976] AC 167

Jurisdiction:

England and Wales

Cited by:

Cited – Buchler and another (as joint liquidators of Leyland DAF Limited) v Talbot and another (as joint administrative receivers of Leyland DAF Limited) and Stichting Ofasec and others HL 4-Mar-2004
The liquidator sought to recover his expenses from assets charged under a floating charge in priority to the chargee.
Held: Barleycorn was decided in error. The liquidators costs incurred in an insolvent winding up were not to be charged . .
Cited – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Cited – Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors (of Navigator Holdings Plc and Others) PC 16-May-2006
(Isle of Man) A scheme of arrangement was proposed for a company with involvement in several jurisdictions. An order in New York sought assistance in the vesting of shares and assets in the Isle of Man in the creditors committee. Cambridge was a . .
Cited – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
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.

Company, Insolvency, Trusts

Updated: 17 July 2022; Ref: scu.194248

Day and Another v Day: CA 27 Mar 2013

Appeal against refusal of order to rectify a conveyance of 1985.
Held: The conveyance was in the nature of a voluntary settlement and in such a case what is relevant is the subjective intention of the settlor.

Judges:

Sir Terence Etherton Ch, Elias, Lewison LJJ

Citations:

[2013] EWCA Civ 280, [2014] 1 Ch 114, [2013] WTLR 817, [2013] 3 All ER 661, [2013] 3 WLR 556, [2013] WLR(D) 129

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 17 July 2022; Ref: scu.472062

IBM United Kingdom Pensions Trust Ltd v IBM United Kingdom Holdings Ltd and Others: ChD 12 Oct 2012

Application for further amendment of deed of amendment relating to company pension scheme.

Judges:

Warren J

Citations:

[2012] EWHC 2766 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Re IBM Pension Plan ChD 2012
The court considered an application to rectify a pension scheme.
Held: Warren J said: ‘There needs to be cogent evidence of the intentions of both the trustee and the employer where the power of amendment requires the consent of both. . . In a . .
See Also – IBM United Kingdom Pensions Trust Ltd v Metcalfe and Others ChD 1-Feb-2012
. .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 17 July 2022; Ref: scu.464907

Laskar v Laskar: CA 7 Feb 2008

The appellant challenged a finding that though she was named as joint tenant of the property with her mother, she had no beneficial interest in it. The property had formerly been a council house tenanted by the respondent and her late husband.
Lord Neuberger of Abbotsbury said: ‘When it comes to assessing the contributions to the purchase price the claimant argues either that no account should be taken of the discount of andpound;29,415 or that it should be attributable equally to both parties. I do not agree. In the absence of authority the position seems to me to be this. The reason the property could be bought at a discount, indeed the reason that the property could be bought at all, was that the defendant had been the secure tenant of the property and had resided there in that capacity for a substantial period; see the sections of the Housing Act 1985 to which I have referred. It was therefore the defendant and solely the defendant to whom the discount of andpound;29,415 could be attributed, a fact which she exercised. Her privilege under section 123 of the 1985 Act to share her statutory right to buy with her daughter does not seem to me in any way to alter that conclusion. Sharing with a third party the right to buy in law as against the council is not the same thing as sharing the consequences of the right to buy in equity as against a third party.’

Judges:

Tuckey, Neuberger, Rimer LJJ

Citations:

[2008] EWCA Civ 347, [2008] 1 WLR 2695, [2008] 2 P and CR 14, [2008] 7 EG 142, [2008] 2 FLR 589, [2008] 21 EG 140, [2008] Fam Law 638, [2008] 2 EGLR 70

Links:

Bailii

Statutes:

Housing Act 1985

Jurisdiction:

England and Wales

Cited by:

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

Land, Trusts

Updated: 15 July 2022; Ref: scu.268701

Berezovsky v Abramovich: ComC 22 May 2008

Applications were made to amend pleadings and for consequential orders. The claimant sought damages of $4.3 billion alleging breach of trust. The claimant sought to add claims which the defendant said were out of time.
Held: The proposed amendment was refused. ‘It is open to the Claimant to bring claims for breach of trust or of fiduciary duty more than six years after the causes of action arose but only for those explicitly based on and limited to fraud. The current proposed amendment is not explicit about fraud.’

Judges:

Mackie J QC

Citations:

[2008] EWHC 1138 (Comm)

Links:

Bailii

Statutes:

Limitation Act 1980 21(1)(a)

Citing:

Cited – Cobbold v London Borough of Greenwich CA 9-Aug-1999
The tenant had sought an order against the council landlord for failure to repair her dwelling. The defendant appealed refusal of leave to amend the pleadings in anticipation of the trial, now due to start on the following day.
Held: Leave was . .
Cited – Armitage v Nurse; etc CA 19-Mar-1997
A clause in a trust deed may validly excuse trustees from personal liability for even gross negligence. The trustee was exempted from liability for loss or damage ‘unless such loss or damage shall be caused by his own actual fraud’.
Held: The . .
Cited – Paragon v Thakerer 1993
A claim for fraudulent or intentional breach of trust/fiduciary duty is a different cause of action from a claim for breach of trust/fiduciary duty generally and must be separately and distinctly pleaded. . .
Cited – Giles v Rhind CA 28-Feb-2008
. .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – Goode v Martin CA 13-Dec-2001
The claimant had sought to amend her claim for damages for personal injuries. The application had been rejected as introducing a claim not based on the same facts. She had suffered severe head injuries, and had no memory of the accident. She served . .
Cited – Welsh Development Agency v Redpath Dorman Long Ltd CA 4-Apr-1994
A new claim was not deemed to have been made until the pleading was actually amended for limitation purposes, and should not be allowed after the limitation period had expired. The date of the application for leave to amend was not at issue. The . .
Cited – The Convergence Group Plc and Another v Chantrey Vellacott (a Firm) CA 16-Mar-2005
An accountant sought payment of his professional fees. The defendants had sought to re-amend their defence and counterclaim. Appeals had variously been allowed to go ahead or denied after the master had not been able to deal with all of them for . .
Cited – Nomura International Plc v Granada Group Ltd and others ComC 23-Mar-2007
To fulfil the requirement in CPR Part 16.2.1(a) ‘it is necessary at least to give some idea or indication of the duty which it is alleged the defendant has failed to perform.’ . .
Cited – P and O Nedloyd BV v Arab Metals Co and Others (‘The UB Tiger’) QBD 22-Jun-2005
The claimants sought to amend their particulars of claim to add a request for declarations with regard to a bill of lading and contract for carriage.
Held: The application to amend was made more than six years after the cause of action . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Trusts, Limitation

Updated: 15 July 2022; Ref: scu.268005

Morris v Morris: CA 22 Feb 2008

Absent an express post-acquisition agreement, a court will be slow to infer from conduct alone that parties intended to vary existing beneficial interests established at the time of acquisition.

Citations:

[2008] EWCA Civ 257

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Hopton v Miller ChD 31-Aug-2010
The parties had entered into partnership to open and run a restaurant, but without a formal agreement. They differed as to the values contributed by their respective efforts. After failures to disclose materials requested, the defendant we precluded . .
Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 14 July 2022; Ref: scu.266491

In Re Quinton Dick (orse Quintin Dick), Concurry (Lord) v Fenton: 1926

T died in 1858, and by his will devised his estates on strict successive trusts, directing beneficiaries to take the surname and arms of Dick. Should a beneficiary fail to comply within three months, the bequest should fail for that person and pass to the next as if that person was deceased. After one tenant died without issue, it took a year to discover the next heir in Canada.
Held: The beneficiary had no knowledge of the bequest or its terms, and could not therefore be said to have neglected or refused to comply with its conditions. The terms were not equivalent to ‘fail’. The tenant in tail had not therefore forfeited the estate.
Romer J said: ”The expression ‘refuse or neglect’ involves the idea of some exercise of discretion, some exercise of will, on his part’ (per Warrington J in Re Edwards (supra)). If the word ‘neglect’ connotes the exercise of the will it cannot include a failure or omission which is due to ignorance of the provisions of the document, and which therefore does not result from any operation of the mind.’

Judges:

Romer J

Citations:

[1926] Ch 992

Jurisdiction:

England and Wales

Cited by:

Cited – Naylor and Another v Barlow and Others ChD 19-Jun-2019
‘two interesting and difficult questions on the law of wills: (1) Where issue succeed to the interest of a parent who predeceased the testator under s.33 of the Wills Act 1837 (as amended), do they take subject to any condition subsequent which . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 14 July 2022; Ref: scu.639678

Astley v Earl of Essex: CA 1874

A remainderman who fails to enforce a forfeiture of a preceding life estate obtains a fresh right to possession when the life estate terminates on the death of the life tenant.

Judges:

Sir George Jessel MR

Citations:

(1874) LR 18 Eq 290, 30 LT 485

Jurisdiction:

England and Wales

Cited by:

Cited – Naylor and Another v Barlow and Others ChD 19-Jun-2019
‘two interesting and difficult questions on the law of wills: (1) Where issue succeed to the interest of a parent who predeceased the testator under s.33 of the Wills Act 1837 (as amended), do they take subject to any condition subsequent which . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 14 July 2022; Ref: scu.639679

Dougan’s Trustee v Dougan: HL 14 Feb 1902

Two brothers A and B acquired on their mother’s death vested rights each to an equal share in the trust-estates under the marriage-contract of their parents and the will of their father. After their mother’s death B, being in embarrassed circumstances, approached A with a view to a sale of his interest. B ultimately assigned his share in the trust-estates to A in consideration of A undertaking to pay certain debts due by B and to pay pounds 450 to B in cash. When the negotiations for this bargain were proceeding A had before him a valuation of his own share of the trust-estate which he had obtained for his own purposes, and which showed the value of each share to be such that if the valuation was correct A would make a profit of pounds 600 upon his transaction with B. This valuation was not disclosed by A to B. A admitted that he expected when carrying out the transaction to make a profit of a few hundred pounds; and in his cross-examination said he did not see that ‘fairness had anything to do with it.’ After receiving the pounds 450 B left the country, and thereafter his estates were sequestrated.
In an action brought by B’s trustee in bankruptcy against A, held ( aff. judgment of the Second Division) that, on payment of pounds 450 to A, the trustee in bankruptcy was entitled to reduction of the assignation.

Judges:

Lord Chancellor (Halsbury), Lord Ashbourne, Lord Macnaghten, Lord Shand, Lord Brampton, and Lord Lindley

Citations:

[1902] UKHL 383, 39 SLR 383

Links:

Bailii

Jurisdiction:

England and Wales

Trusts, Insolvency

Updated: 14 July 2022; Ref: scu.630786

Learoyd v Whiteley: HL 1 Aug 1887

In managing a trust business the trustee should exercise the same care as an ordinary, prudent business person would exercise in conducting that business as if it were his or her own

Judges:

Lord Halsbury LC

Citations:

[1887] UKHL 1, (1887) LR 12 App Cas 727, (1887) 12 AC 727

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – In re Whiteley, Whiteley v Learoyd CA 1886
The trustees were charged with making unauthorized or improper investments, and the claim was that the trusts of the will relating to the sums invested should be carried into execution under the direction of the court and that the trustees might be . .

Cited by:

Cited – Pullan v Wilson and Others ChD 28-Jan-2014
The court was asked difficult questions concerning the reasonableness of the remuneration charged to a number of family trusts by a professional trustee.
Held: Excessive claims for fees had been made, and the trustees were ordered to repay . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 13 July 2022; Ref: scu.263827

Speight v Gaunt: HL 26 Nov 1883

A trustee is required to use the same degree of prudence and diligence as a person of ordinary prudence would have done if he had been conducting his own affairs.

Judges:

Lord Blackburn, Earl of Selborne LC

Citations:

(1883) 9 App Cas 1, [1883] UKHL 1, (1883-84) LR 9 App Cas 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Speight v Gaunt CA 20-Jan-1883
A trustee must act for the beneficiaries as a prudent person of business would act in his own affairs. Sir George Jessel MR said: ‘It seems to me that on general principles a trustee ought to conduct the business of the trust in the same manner that . .

Cited by:

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

Trusts, Negligence, Equity

Updated: 13 July 2022; Ref: scu.263825

Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd: 1991

A company pension scheme had been operating for many years, with increases being provided for under one rule. A new rule was introduced to provide regular increases. The company was taken over, and the trustees sought clarification of the company’s obligations.
Held: The new rule provided a minimum increase but no right for the trustees to grant unilateral increases above that minimum. It was not possible to imply a condition of reasonableness as to the exercise of the company’s discretion, but there was an obligation to act in good faith as in every contract of employment. There existed an implied obligation that the discretion should not be exercised so as to destroy or seriously damage the relationship of trust and confidence between the company and its employees and former employees. The power of the company to withhold consent to benefit increases must be exercised in good faith. ‘Pension scheme trusts are of quite a different nature to traditional trusts. The traditional trust is one under which the settlor, by way of bounty, transfers property to trustees to be administered for the beneficiaries as objects of his bounty. Normally, there is no legal relationship between the parties apart from the trust. The beneficiaries have given no consideration for what they receive. The settlor, as donor, can impose such limits on his bounty as he chooses, including imposing a requirement that the consent of himself or some other person shall be required to the exercise of the powers. As the Court of Appeal have pointed out in Mihlenstedt v. Barclays Bank International Ltd [1989] I.R.L.R. 522 a pension scheme is quite different. Pension benefits are part of the consideration which an employee receives in return for the rendering of his services. In many cases, including the present, membership of the pension scheme is a requirement of employment. In contributory schemes, such as this, the employee is himself bound to pay for his or her contributions. Beneficiaries of the scheme, the members, far from being volunteers have been given valuable consideration. The company employer is not conferring a bounty. In my judgment, the scheme is established against the background of such employment and falls to be interpreted against that background’
Sir Nicolas Browne-Wilkinson VC discussed the implied term of trust and confidence between employer and employee: ‘I will call this implied term ‘the implied obligation of good faith.’ In my judgment, that obligation of an employer applies as much to the exercise of his rights and powers under a pension scheme as they do to the other rights and powers of an employer. Say, in purported exercise of its right to give or withhold consent, the company were to say, capriciously, that it would consent to an increase in the pension benefits of members of union A but not of the members of union B. In my judgment, the members of union B would have a good claim in contract for breach of the implied obligation of good faith: see Mihlenstedt v Barclays Bank International Ltd [1989] IRLR 522′.

Judges:

Sir Nicolas Browne-Wilkinson VC

Citations:

[1991] ICR 524, [1991] 2 All ER 597, [1991] 1 WLR 589

Jurisdiction:

England and Wales

Citing:

Applied – Woods v W M Car Services (Peterborough) Ltd EAT 1981
An employer will be guilty of a breach which entitles an employee to resign and claim constructive dismissal if the employer behaves in such a way as to destroy the relationship of trust and confidence. An employer shall not ‘without reasonable and . .
Cited – Mihlenstedt v Barclays Bank International CA 1989
The company’s pension scheme provided that the trustees were to form an opinion as to the employee’s ability or otherwise to work. The plaintiff sought payment of an ill-health pension under the Bank Pension Scheme.
Held: A pension scheme . .

Cited by:

Cited – AMP (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 . .
Cited – Horkulak v Cantor Fitzgerald International QBD 31-Jul-2003
The claimant sought damages for constructive dismissal. He said that verbal abuse he had suffered from the manager damaged his health and destroyed the relationship of trust and confidence.
Held: The manager was dictatorial and saw it as his . .
Cited – National Grid Co Plc v Mayes and Others; International Power Plc (Formerly National Power Plc) v Healy and Others HL 7-Jun-2001
The release by the trustees of a sum due to the pension scheme from the employers, did not make funds payable to the employer, so as to trigger the clause within the scheme trust deed which would restrain such a payment. Where an actuarial surplus . .
Cited – Reda, Abdul-Jalil v Flag Limited PC 11-Jul-2002
PC (Bermuda) The courts should be reluctant to accept a fetter on the employer’s right to dismiss on notice where there is an express term in the contract empowering the employer to do so.
Lord Millet . .
Cited – RDF Media Group Plc and Another v Clements QBD 5-Dec-2007
The defendant had sold his business to the claimants and in part consideration had accepted restrictive covenants as to his not competing with them. On indicating his desire to leave the claimants and work for a competitor, made statements which the . .
Cited – Transco Plc v O’Brien CA 7-Mar-2002
The company appealed against a finding that they were in breach of their contract of employment in not including the claimant in those considered for an enhanced redundancy package.
Held: The appeal failed. Tribunals should be cautious before . .
Lists of cited by and citing cases may be incomplete.

Employment, Trusts, Company

Updated: 13 July 2022; Ref: scu.182111

Beloved Wilkes’ Charity, Re: ChD 28 Apr 1851

Trustees are under no general duty to explain the exercise by them of a discretion.

Citations:

[1851] EWHC Ch J52, (1851) 3 Mac and G 440, [1851] EngR 375, (1851) 42 ER 330

Links:

Bailii, Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Jones 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: 13 July 2022; Ref: scu.245424

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 acquisition by one party of a legal title to property whenever that party has so conducted himself that it would be inequitable to allow him to deny to the other party a beneficial interest in the property acquired. This will be so where (i) there was a common intention that both parties should have a beneficial interest and (ii) the claimant has acted to his detriment in the belief that by so acting he was acquiring a beneficial interest’ Here the defendant had led the claimant to believe that she would have in interest in the properties, and she had suffered a real detriment on that basis. There was however no express agreement. The trusts established were different for the different properties.

Judges:

Lawrence Collins J

Citations:

[2005] EWHC 1478 (Ch)

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996 14, Law Reform (Miscellaneous Provisions) Act 1970 2(1), Matrimonial Proceedings and Property Act 1970 37

Jurisdiction:

England and Wales

Citing:

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 – 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 – 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 – 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 – 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 – 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 – 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 – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
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 – Crabb v Arun District Council CA 23-Jul-1975
The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
Held: His claim to have raised an equity was upheld. The plaintiff . .
Cited – Cobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
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 – Midland 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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 13 July 2022; Ref: scu.228597

Ultraframe (UK) Ltd v Fielding and others: ChD 11 Nov 2005

Ultraframe asked the judge to re-open his ‘in the round’ decision on costs.
Held: The decision questioned was not a draft, but a concluded judgment. The judge said that he had not made such a ‘palpable error’ in his order as to give him jurisdiction to re-open the decision.
Lewison J said: ‘The taking of an account is the means by which a beneficiary requires a trustee to justify his stewardship of trust property. The trustee must show what he has done with that property. If the beneficiary is dissatisfied with the way that a trustee has dealt with trust assets, he may surcharge or falsify the account. He surcharges the account when he alleges that the trustee has not obtained for the benefit of the trust all that he might have done, if he had exercised due care and diligence. If the allegation is proved, then the account is taken as if the trustee had received, for the benefit of the trust, what he would have received if he had exercised due care and diligence. The beneficiary falsifies the account when he alleges that the trustee has applied trust property in a way that he should not have done (e.g. by making an unauthorised investment). If the allegation is proved, then the account will be taken as if the expenditure had not been made; and as if the unauthorised investment had not formed part of the assets of the trust. Of course if the unauthorised investment has appreciated in value, the beneficiary may choose not to falsify the account: in which case the asset will remain a trust asset and the expenditure on it will be allowed in taking the account.’

Judges:

Lewison J

Citations:

[2005] EWHC 2506 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Robinson v Fernsby, Scott-Kilvert CA 19-Dec-2003
The judge had drafted his judgment and sent the drafts to the parties for comment. He then received additional written representations from one party, from which he realised that he had made an error, and issued a corrected judgment which a . .
Cited – In re Barrell Enterprises CA 1972
A judge has power to reconsider a judgement which he has delivered before the order consequent upon it has been sealed, but the judge should only exercise this power if there are strong reasons for doing so. When oral judgments have been given the . .
See Also – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .

Cited by:

Cited – Pullan v Wilson and Others ChD 28-Jan-2014
The court was asked difficult questions concerning the reasonableness of the remuneration charged to a number of family trusts by a professional trustee.
Held: Excessive claims for fees had been made, and the trustees were ordered to repay . .
Lists of cited by and citing cases may be incomplete.

Costs, Trusts

Updated: 13 July 2022; Ref: scu.234733

Wallbank and Another v Price: ChD 28 Nov 2007

The parties owned a property together. When their relationship broke down they now disputed the shhares in which they held the property. They had signed a declartion that the property was held for themselves as beneficial joint tenants.

Judges:

Lewison J

Citations:

[2007] EWHC 3001 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Land, Trusts

Updated: 12 July 2022; Ref: scu.262959

Holder v Holder; In re Frank Holder dec: CA 8 Dec 1967

The court considered a complaint that a trustee had purchased trust property.
Held: There is a residual discretion in the Court to uphold a transaction that technically falls within the prohibition.

Judges:

Harman LJ, Danckwerts LJ, Sachs LJ

Citations:

[1967] EWCA Civ 2, [1968] Ch 353, [1968] 1 All ER 665, [1968] 2 WLR 237

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Jones 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.

Wills and Probate, Trusts

Updated: 12 July 2022; Ref: scu.262787

In re Londonderry’s Settlement; Peat v Lady Walsh: CA 3 Nov 1964

The Court considered limitations on the right to disclosure of trust documents, and in particuar the need to protect confidentiality in communications between trustees as to the exercise of their dispositive discretions, and in communications made to the trustees by other beneficiaries. Trustees exercising a discretionary power are not bound to disclose to their beneficiaries the reasons actuating them in coming to a decision. In this particular case, there was no obligation to allow inspection of documents relating to trust meetings.

Judges:

Harman LJ, Danckwerts LJ, Salmon LJ

Citations:

[1964] EWCA Civ 6, [1964] 3 All ER 855, [1965] Ch 918, [1965] 2 WLR 229

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Applied – Breakspear and others v Ackland and Another ChD 19-Feb-2008
Beneficiaries sought disclosure of a wishes letter provided by the settlor to the trustees in a family discretionary trust.
Held: The confidentiality in the letter was, in the absence of some express term by the settlor, in the trustees, and . .
Cited – Vadim Schmidt v Rosewood Trust Limited PC 27-Mar-2003
PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had . .
Cited – 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.

Trusts

Updated: 12 July 2022; Ref: scu.262801

Protheroe v Protheroe: CA 1 Feb 1968

If a trustee who owns the leasehold gets in the freehold, the freehold belongs to the trust and the trustee cannot take the property for himself.

Judges:

Lord Denning MR, Danckwerts, Widgery LJJ

Citations:

[1968] EWCA Civ 7, [1968] 1 All ER 1111, [1968] 1 WLR 519, (1968) 19 P and CR 396

Links:

Bailii

Jurisdiction:

England and Wales

Land, Trusts

Updated: 12 July 2022; Ref: scu.262780

Paul v Constance: CA 8 Jul 1976

Judges:

Scarman LJ

Citations:

[1976] EWCA Civ 2, [1977] 1 WLR 527

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 12 July 2022; Ref: scu.262712

Baker v Baker: CA 19 Feb 1993

The measure of damages for an excluded equitable owner is loss of occupation not the loss of his contribution. A father moved in with his family and contributed money in the expectation that he would have the right to occupy the house rent free and for life.
Held: His loss was properly measured as the loss of that right, not of his contribution. He failed to establish a resulting trust, but succeeded in establishing an equitable estoppel.

Judges:

Dillon, Beldam, Roch LJJ

Citations:

Gazette 07-Apr-1993, Independent 06-Apr-1993, Times 23-Feb-1993, [1993] EWCA Civ 17, [1993] 2 FLR 247

Links:

Bailii

Jurisdiction:

England and Wales

Equity, Housing, Estoppel, Trusts

Updated: 12 July 2022; Ref: scu.262595

Logan (Sproat’s Factor) v M’Lellan: HL 9 Mar 1877

Circumstances in which held that the claim of a creditor against a trust-estate on which he had formerly been a trustee could not be defeated by allegations of negligence and default on his part when acting as trustee in compelling payment from others, alleged to be debtors to the estate.
Circumstances of a transaction held to constitute a sale, not a loan.

Citations:

[1877] UKHL 454, 14 SLR 454

Links:

Bailii

Jurisdiction:

Scotland

Trusts

Updated: 12 July 2022; Ref: scu.639642

3 Individual Present Professional Trustees of 2 Trusts v an Infant Prospective Beneficiary of One Trust and others: ChD 25 Jul 2007

The parties challenged under the 198 Act the right of trustees to seek a Beddoe order protecting themselves against an award of costs.

Citations:

[2007] EWHC 1922 (Ch)

Links:

Bailii

Statutes:

Human Rights Act 1998 Part 1

Jurisdiction:

England and Wales

Citing:

Cited – In Re Beddoe, Downes v Cottam CA 1893
A trustee had unsuccessfully defended an action against the trust in detinue for the return of deeds. He now sought protection against a costs order. Costs having been awarded against a trustee in proceeding A, the trustee sought to be indemnified . .
Cited – In re Moritz CA 1960
Trustees had denied the defendants a sight of the exhibits to affidavits. Their’ counsel argued for a settled practice that where an application is made by trustees for directions of the Beddoe kind, then the proposed defendant beneficiaries should . .
Cited – McDonald and Others v Horn and Others CA 8-Aug-1994
A court may make a pre-emptive award of costs to pension fund members who wished to sue the trustees. Hoffmann LJ said: ‘if one looks at the economic relationships involved, there does seem to me to be a compelling analogy between a minority . .
Cited – Re Evans 1986
. .
Cited – Marley and 11 Others v Mutual Security Merchant Bank and Trust Co Ltd Co PC 15-Oct-1990
BANKING – EQUITY, TRUSTS, PROBATE ADMINISTRATOR’S POWERS OF INVESTMENT Bank as sole administrator cannot invest estate funds in its own deposits in the absence of express sanction in the trust instrument.
Lord Oliver of Aylmerton said: ‘A . .
Cited – McDonald and Others v Horn and Others ChD 12-Oct-1993
A pre-emptive costs order is possible where Plaintiffs are impecunious but the case is very strong. . .
Cited – In re Trusts of X Charity ChD 2003
If a hearing is heard in private, then it is open to the court to rule that its judgment should be maintained in private. Sir Andrew Morritt said: ‘This, essentially administrative, jurisdiction is designed to provide guidance to the fiduciary as to . .
Lists of cited by and citing cases may be incomplete.

Trusts, Human Rights, Costs

Updated: 12 July 2022; Ref: scu.259656

Wordie’s Trustees v Wordie: HL 28 Feb 1916

Held that a direction to trustees, duly appointed, ‘to pay over the balance or residue of my estates to or for behoof of such charitable purposes as I may think proper to name in any writing, however informal, which I may leave, but failing my leaving such writings, then to such charitable institutions or societies which exist for the benefit of women and children requiring aid or assistance of whatever nature, but said institutions and societies to be under the management of Protestants’-the testator having left no such writing-was not void from uncertainty, neither on the ground that no power of selection was expressly conferred on the trustees, nor on the ground that the objects to be benefited were insufficiently pointed out.

Judges:

Lord Chancellor (Buckmaster), Lord Kinnear, Lord Atkinson, and Lord Shaw

Citations:

[1916] UKHL 291, 53 SLR 291

Links:

Bailii

Jurisdiction:

Scotland

Charity, Wills and Probate, Trusts

Updated: 11 July 2022; Ref: scu.630674

Abbott v Abbott: PC 26 Jul 2007

(Antigua and Barbuda) The parties disputed the division of the family assets after a divorce. The family home was registered in the sole name of the husband. There being no provision for property adjustment, the court had to decide the division on the ordinary legal rules.
Baroness Hale said: ‘The search is to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it.’

Judges:

Lord Bingham of Cornhill, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell, Lord Neuberger of Abbotsbury

Citations:

[2009] WTLR 1675, [2008] 1 FLR 1451, [2007] UKPC 53, [2007] 2 All ER 432

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

Applied – 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 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 . .
Cited – Singh v Singh and Another ChD 8-Apr-2014
The parties disputed ownership of various valuable properties. The father asserted that they were held under trusts following the Mitakshara Hindu code, under a common intention constructive trust. The son said that properties held in his own name . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 11 July 2022; Ref: scu.258516

Murphy v Gooch: CA 27 Jun 2007

The unmarried parties had sought an order from the court as to their respective interests in their former family home.
Held:The judge had been incorrect to make his decsion based on the principles of equitable accounting. He should have used the 1996 Act.
Lightman J summarised the effect of the 1996 Act: ‘section 12 of the 1996 Act confers on beneficiaries entitled to an interest in possession a right to occupy land available for his occupation. Section 13 confers on trustees, where there are two or more of such beneficiaries, the power (1) to exclude or restrict the entitlement to occupation of any one or more (but not all) of such beneficiaries; (2) to impose conditions on any beneficiary in relation to his entitlement to occupy, including conditions requiring him: (a) to pay outgoings and expenses in relation to the land; and (b) where the entitlement of another beneficiary to occupy land under section 12 has been excluded or restricted, to make payments by way of compensation to the beneficiary whose entitlement has been excluded or restricted and to forego any payment or other benefit to which he would otherwise be entitled under the trust so as to benefit that beneficiary. This section is designed to confer on trustees power to regulate and set the terms for future occupation of trust land. Section 14 confers power on the court on application by trustees or others interested to make such orders as it thinks fit: (a) relating to any of the trustees’ functions (which includes their functions under section 13); and (b) to declare the nature or extent of a person’s interest in property subject to the trust. It must be under the latter of these two powers that the statutory jurisdiction is conferred on the court to take accounts between co-owners.
Under the previous equitable doctrine the court was concerned only with considerations relevant to achieving a just result between the parties. The statutory innovation is section 15, which requires the court in determining all applications for an order under section 14 to include amongst the other matters to which it has regard: (1) in all cases (so far as applicable) the four matters referred to by Baroness Hale; (2) in the case of applications relating to the exercise by trustees of the powers conferred by section 13 the circumstances and wishes of each of the beneficiaries who is (or apart from any previous exercise by the trustees would be) entitled to occupy the land under section 12; and (3) in case of any other application (other than one relating to the conveyance of land to beneficiaries absolutely entitled) the circumstances and wishes of any beneficiaries of full age entitled to an interest in possession. The wider ambit of relevant considerations means that the task of the court must now be, not merely to do justice between the parties, but to do justice between the parties with due regard to the relevant statutory considerations and in particular (where applicable) the welfare of the minor, the interests of secured creditors and the circumstances and wishes of the beneficiaries specified.’

Judges:

Lightman J, Mummery LJ, Sedley LJ

Citations:

[2007] EWCA Civ 603

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996 14

Jurisdiction:

England and Wales

Citing:

Cited – in Re Pavlou (A Bankrupt) ChD 17-Mar-1993
Mr and Mrs Pavlou bought a house for andpound;12,500 with a mortgage of andpound;9,500. After the husband left, the wife remained in sole occupation, and paid the mortgage instalments as they fell due. Thirteen years after the marriage Mrs Pavlou . .
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 – Byford 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 . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 11 July 2022; Ref: scu.253706

McGraddie v McGraddie and Another: SCS 13 Mar 2012

The defender appealed against rejection of his assertion that monies paid to him by his father was by way of gift.
Held: His appeal succeeded. The Lord Ordinary’s conclusions were ‘plainly wrong’ when he stated that he did not find any of the other evidence materially to undermine the specifics of the pursuer’s account or his evidence more generally. On that basis, they concluded that they were entitled to overturn his decision and to substitute their own decision.

Judges:

Lady Paton

Citations:

[2012] ScotCS CSIH – 23, [2012] CSIH 23

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – McGraddie v McGraddie and Another SCS 3-Nov-2009
The parties, father and his and and his wife, disputed whether advances of money had been by way of a gift from the father or otherwise, and accordingly whether property purchased in the son’s own name was to be transferred to the father.
See Also – McGraddie v McGraddie and Another SCS 7-May-2010
Consequential opinion as to remedies. . .

Cited by:

See Also – McGraddie v McGraddie and Another SCS 13-Mar-2012
. .
See Also – McGraddie v McGraddie and Another (Scotland : Costs) SC 28-Jan-2015
The parties, father and son had fallen out. The father said that a property purhased by the son with money provided by the father, was held in trust for the father. The Court had rejected the argument of the son that this had been a gift. The . .
Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Lists of cited by and citing cases may be incomplete.

Trusts, Contract

Updated: 10 July 2022; Ref: scu.460275

McGraddie v McGraddie and Another: SCS 3 Nov 2009

The parties, father and his and and his wife, disputed whether advances of money had been by way of a gift from the father or otherwise, and accordingly whether property purchased in the son’s own name was to be transferred to the father.
Held: The the pursuer was ‘a confident witness, capable of being firm and even robust in the face of cross-examination’, and that ‘there was an energy in his responses that had an air of conviction about it’. He acknowledged that the pursuer’s evidence ‘lacked much in the way of specifics or circumstantial detail’ in relation to the second transaction and that he had forgotten some matters. As to the defender: ‘The content of the first defender’s evidence and the manner in which he gave it raised sharp questions as to whether he was a witness in whom the court could have confidence.’ He was not a witness upon whom he coud rely.

Judges:

Lord Ordinary, Lord Brodie

Citations:

[2009] ScotCS CSOH – 142, [2009] CSOH 142

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

See Also – McGraddie v McGraddie and Another SCS 7-May-2010
Consequential opinion as to remedies. . .
See Also – McGraddie v McGraddie and Another SCS 13-Mar-2012
The defender appealed against rejection of his assertion that monies paid to him by his father was by way of gift.
Held: His appeal succeeded. The Lord Ordinary’s conclusions were ‘plainly wrong’ when he stated that he did not find any of the . .
See Also – McGraddie v McGraddie and Another SCS 13-Mar-2012
. .
See Also – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Lists of cited by and citing cases may be incomplete.

Trusts, Litigation Practice

Updated: 10 July 2022; Ref: scu.377366

Harris v Kent and Another: ChD 14 Mar 2007

The claimant said the defendant had failed to complete his promise to arrange for the issue of shares in a company in return for a loan. The defendant denied the contract.
Held: It had been agreed to treat the claimant as a fifty per cent participant, and an estoppel had been created as against the defendants.
As to damages: ‘The ‘but for the breach’ analysis called for by the application of the basic equitable principle requires the court to decide what would hypothetically have happened if, instead of committing the breach of trust, the Kents as trustees had in all respects complied with their fiduciary obligations. In this respect equity follows the law, in which for example damages are quantified by reference to the difference between the effect of the breach and the position which the claimant would have been in, had the defendant complied with his contract. ‘ Damages were awarded accordingly.

Judges:

Briggs J

Citations:

[2007] EWHC 463 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Walsh v Lonsdale CA 1882
Lonsdale purported to grant to Walsh a seven year lease with rent payable in advance. The lease was not embodied in a deed, and when Walsh went into possession, an annual tenancy with rent payable in arrear was created. Walsh did not pay in advance, . .
Cited – Target Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Trusts

Updated: 10 July 2022; Ref: scu.250019

Baker and Another v J E Clark and Co (Transport) UK Ltd and Another: CA 22 Mar 2006

The claimant sought payment of insurance benefits which she said should have been paid to her husband before his death. The company and its directors sought reliance on an exemption clause in common form in the trust instrument absolving them from liability. The scheme had been terminated by the insurance company. The widow asserted negligence in not having made alternative arrangements or notified her husband.
Held: No sufficient duty had arisen toward the deceased. The assertion that the 1977 Act made the exemption clause invalid failed. The clause did not amount to a notice within the Act.

Judges:

The Hon Mr Justice Carnwath Lord Justice Tuckey Mr Justice Bennett

Citations:

[2006] EWCA Civ 464

Links:

Bailii

Statutes:

Unfair Contract Trems Act 1977

Jurisdiction:

England and Wales

Trusts, Contract, Negligence

Updated: 10 July 2022; Ref: scu.241383

Glenn v Watson and Others: ChD 31 Jul 2018

In the context of a claim in which there were substantial disagreements as to the underlying facts. Nugee J said: ”Despite the primacy which our trial system has long given to oral evidence, it is by now a commonplace that the memory even of witnesses who are doing their honest best is often unreliable . . and in cases of fraud when the credibility of witnesses is in issue, it has long been recognised to be essential to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities . .’

Judges:

Nugee J

Citations:

[2018] EWHC 2016 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Walsh v Greystone Financial Services Ltd ChD 4-Jul-2019
The parties disputed a long history of allegations and denials of involvement in fraud. . .
Lists of cited by and citing cases may be incomplete.

Contract, Trusts

Updated: 10 July 2022; Ref: scu.621072

Baddeley (Trustees of the Newtown Trust) v Inland Revenue Commissioners: HL 17 Feb 1955

Land had been conveyed to trustees for the moral, social and physical well-being of a community. The court considered whether the trust was charitable in nature, where it was said that it confined the benefits to a class of people who do not constitute either the public or a relevant section of the public.
Held: It was not charitable, in particular that it failed for its vagueness and generality.
Lord Simonds distinguished between ‘a form of relief extended to the whole community yet, by its very nature, advantageous only to the few, and a form of relief accorded to a selected few out of a larger number equally willing and able to take advantage of it’, saying ‘Somewhat different considerations arise if the form, which the purporting charity takes, is something of general utility which is, nevertheless, made available not to the whole public but only to a selected body of the public – an important class of the public it may be. For example, a bridge which is available for all the public may undoubtedly be a charity and it is indifferent how many people use it. But confine its use to a selected number of persons, however numerous and important: it is then clearly not a charity. It is not of general public utility, for it does not serve the public purpose which its nature qualifies it to serve.’ and ‘The moral, social and physical well-being of the community, or any part of it, is a laudable object of benevolence and philanthropy, but its ambit is far too wide to include only purposes which the law regards as charitable.’

Judges:

Viscount Simonds, Lord Porter, Lord Reid, Lord Tucker, Lord Somervell of Harrow

Citations:

[1955] UKHL 1, [1955] AC 572, [1955] 1 All ER 525

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Verge v Somerville PC 1924
On an appeal from New South Wales, The Board considered the validity of a gift ‘to the trustees’ of the Repatriation Fund or other similar fund for the benefit of New South Wales returned soldiers’.
Held: Trusts for education and religion do . .

Cited by:

Cited – Guild v Inland Revenue Commissioners HL 6-May-1992
The will left land for a sports centre to a local authority which no longer existed. If the gift was charitable, the gift would be applied cy pres, but if not it would fail and pass to the family and be subect to Inheritance Tax.
Held: A gift . .
Lists of cited by and citing cases may be incomplete.

Charity, Trusts

Updated: 09 July 2022; Ref: scu.248522

Jasmine Trustees Ltd and others v Wells and Hind (A Firm) and Another: ChD 19 Jan 2007

The original trustees had puported to appoint to act in their stead a company and an individual. The beneficiaries said that the trust deed required two individuals, and a trust corporation was not such.
Held: The word ‘individuals’ in section 37(1)(c) of the 1925 Act had to be given its natural meaning, within its legislative context. The original trustees were not discharged, and actions taken by the invalidly appointed trustees were ineffective, the purported trustees being merely trustees de son tort.

Judges:

Mann J

Citations:

[2007] EWHC 38 (Ch), Times 12-Feb-2007

Links:

Bailii

Statutes:

Trustee Act 1925 37(1)(c)

Jurisdiction:

England and Wales

Trusts

Updated: 09 July 2022; Ref: scu.247967

IDC Group Ltd and others v Clark and others: CA 25 Jun 1991

Sir Nicolas Browne-Wilkinson VC reviewed the cases about constructive trust claims summarising the result as follows: ‘That decision [Lyus] was approved by the Court of Appeal in Ashburn Anstalt v Arnold . . The Court of Appeal put what I hope is the quietus to the heresy that a mere licence creates an interest in land. They also put the quietus to the heresy that parties to a contractual licence necessarily become constructive trustees. They also held . . that the mere fact that property is sold subject to a contractual licence is not sufficient to create a constructive trust. They held . . that the mere fact that somebody has purchased with notice of a claim does not give rise to a constructive trust. However, the Court of Appeal plainly considered that Lyus v Prowsa was rightly decided.
The result, as it seems to me, is that in the normal case a conveyance of land subject to or with notice of prior incumbrances or prior interests will not operate so as to make enforceable under a constructive trust such prior incumbrances or interests which would otherwise be unenforceable.
However, in certain circumstances equity raises a constructive trust because it is unconscionable for the person having received such property not to give effect to the terms on which he received it. As the Court of Appeal said, and with respect I would agree:
‘In matters relating to the title to land certainty is of prime importance. We do not think it desirable that constructive trusts of land should be imposed in reliance on inferences from slender materials.’
It is important always to bear in mind that it is of the greatest importance that the title to land should be capable of being ascertained in accordance with well-known procedures. To raise constructive trusts which do not fit into the conveyancing machinery currently operating, thereby giving rise to liabilities of which purchasers might otherwise not be aware, is a dangerous course to pursue.
In my judgment, the decision in Ashburn Anstalt does not warrant the creation of a constructive trust unless there are very special circumstances showing that the transferee of the property undertook a new liability to give effect to provisions for the benefit of third parties. It is the conscience of the transferee which has to be affected and it has to be affected in a way which gives rise to an obligation to meet the legitimate expectations of the third party.’

Judges:

Sir Nicolas Browne-Wilkinson VC

Citations:

[1991] EWCA Civ 3, [1992] 1 EGLR 186

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Halsall v Brizell ChD 1957
Land in Liverpool was sold in building plots. The vendors retained the roads and sewers and a promenade and sea wall. A separate deed of covenant of 1851 between the vendors and the owners of the plots which had by then been sold, recited that the . .

Cited by:

Cited – Davies and Others v Jones and Another CA 9-Nov-2009
The parties contracted for the sale of land for development. The contract allowed for the costs of environmental remediation, but disputed the true figure set by the eventual builder and retained. The court now heard argument about whether the sum . .
Cited – Chaudhary v Yavuz CA 22-Nov-2011
The court was asked ‘whether and if so how an easement arising informally and not protected by any entry at the Land Registry can be effective against a purchaser of the land over which the easement would be exercised.’ The parties respectively . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 07 July 2022; Ref: scu.245296

Dundee General Hospital Board of Management v Bell’s Trustees: HL 26 Mar 1952

The willl left a gift subject to the sole discretion of the trustees as to the ownership of the Hospital.
Held: A decision taken by trustees based upon a wrong interpretation of a deed could be set aside as avoided. Lord Normand said: ‘It cannot be said that it was extravagantly unreasonable to apply a retrospective provision in considering the position of the infirmary at any time within the retrospective period, for the effect of making a provision retrospective is the same as a statutory declaration that at any time within the retrospective period the provision should be deemed to have been in force. Nor do I think it extravagantly unreasonable to doubt whether a nexus affecting the entire property of the infirmary, and intended pro tanto to prevent the evasion of the expropriation sections of the Act, might not have placed the infirmary to some extent under the control of the State.’ . . And ‘ It cannot be said that it was extravagantly unreasonable to apply a retrospective provision in considering the position of the infirmary at any time within the retrospective period, for the effect of making a provision retrospective is the same as a statutory declaration that at any time within the retrospective period the provision should be deemed to have been in force. Nor do I think it extravagantly unreasonable to doubt whether a nexus affecting the entire property of the infirmary, and intended pro tanto to prevent the evasion of the expropriation sections of the Act, might not have placed the infirmary to some extent under the control of the State.’

Judges:

Lord Normand

Citations:

[1952] 1 All ER 896, [1952] UKHL 3

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – St Mary and St Michael Parish Advisory Company Ltd v The Westminster Roman Catholic Diocese Trustee, Her Majesty’s Attorney Genera and others ChD 6-Apr-2006
Parish members objected to the building within the church grounds of an education centre. They said that the land was to be used for the purposes of the members of the parish only under a trust deed of 1851.
Held: The deed had to be construed . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 06 July 2022; Ref: scu.242384

In re King’s Trust: 1892

Lord Porter said it was ‘little short of disgraceful to our jurisprudence’ that in reference to a rule professedly founded on public policy there should be a distinction between a gift of an annuity for life coupled with a proviso for cessation if the donee married (treated as giving a life interest) and a gift until he marries (treated as giving an interest only until marriage).

Judges:

Lord Porter MR

Citations:

(1892) 29 LR Ir 401

Jurisdiction:

England and Wales

Cited by:

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

Family, Trusts

Updated: 06 July 2022; Ref: scu.442617

Holmden’s Settlement Trusts, Re Holmden’s Settlement, Re: HL 13 Dec 1967

Under the 1968 Act, the court is not in the position of a statutory settlor. Lord Reid described the provisions of the 1958 Act: ‘Under the Variation of Trusts Act the court does not itself amend or vary the trusts of the original settlement. The beneficiaries are not bound by variations because the court has made the variation. Each beneficiary is bound because he has consented to the variation. If he was not of full age when the arrangement was made he is bound because the court was authorised by the Act to approve of it on his behalf and did so by making an order. If he was of full age and did not in fact consent he is not affected by the order of the court and he is not bound. So the arrangement must be regarded as an arrangement made by the beneficiaries themselves. The court merely acted on behalf of or as representing those beneficiaries who were not in a position to give their own consent and approval.
So we have an alteration of the settlement which was not made by the settlor or by the court as being empowered to make it, but which was made by the beneficiaries quite independently of the settlor or of any power, express or implied given or deemed to have been given by him.’
Lord Guest: ‘Section 1 of the Act enabled the court to give approval to an arrangement on behalf of such persons as were unable by incapacity or otherwise to give their approval. The court thus supplied the capacity which the incapax lacked.’
Lord Wilberforce: ‘If all the beneficiaries under the settlement had been sui juris, they could, in my opinion, have joined together with the trustees and declared different trusts which would supersede those originally contained in the settlement. Those new trusts would operate proprio vigore, by virtue of a self-contained instrument – namely, the deed of arrangement or variation. The original settlement would have lost any force or relevance. The effect of an order made under the Variation of Trusts Act, 1958, is to make good by act of the court any want of capacity to enter into a binding arrangement of any beneficiary not capable of binding himself and of any beneficiary unborn: the nature and effect of any arrangement so sanctioned is the same as that I have described.’

Judges:

Lord Reid, Lord Guest, Lord Wilberforce

Citations:

[1967] UKHL 7, [1968] AC 685

Links:

Bailii

Statutes:

Variation of Trusts Act 1958 1

Jurisdiction:

England and Wales

Citing:

Appeal from – Re Holmden’s Settlement Trusts CA 1966
Lord Denning MR said: ‘I must, however, consider the statement of Lord Upjohn on the footing that it is one of two reasons which he gave for his decision. It is said that both reasons are binding on all courts in the land, including the House of . .

Cited by:

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

Trusts, Torts – Other

Updated: 06 July 2022; Ref: scu.241669

Day v Day: CA 14 Mar 2006

Judges:

Lord Justice Ward Sir Martin Nourse

Citations:

[2006] EWCA Civ 415

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Johnsey Estates and Limited v Secretary of State for Environment CA 11-Apr-2001
Chadwick LJ: ‘The principles applicable in the present case may, I think, be summarised as follows: (i) costs cannot be recovered except under an order of the court; (ii) the question whether to make any order as to costs – and, if so, what order – . .
Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 06 July 2022; Ref: scu.241387

Anker-Petersen v Christensen: ChD 2002

Where a mistake is made as to the effect of an appointment under a trust it may be possible to invoke the court’s jurisdiction to rescind the appointment. Davis J considered Millett J’s distinction between ‘effect’ and ‘consequences’: ‘An example in this context might be tax. If a party enters into a deed (with a view to saving tax) on terms which are fully understood and where the effect of such terms is fully appreciated and if for whatever reason the anticipated desirable tax consequences thereafter do not flow, it would really not be open, in the ordinary way at least, to such a person to seek to set aside that deed on the ground that he had not understood its nature or effect. I say this appreciating that possibly the position may be different in the case of the exercise of a power or of a discretion by a fiduciary: it may be – and I say no more than that it may be – that the adverse and unintended tax consequences of the exercise of the power or discretion may be invoked to set aside the exercise of that particular power or discretion. But I think the position is entirely different where what is sought to be set aside is a deed entered into by way of voluntary transaction.’

Judges:

Davis J

Citations:

[2002] WTLR 313, [2001] EWHC B3 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Gibbon 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 . .

Cited by:

Cited – Abacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr ChD 6-Feb-2003
The court considered the Rule in Hastings-Bass, and specifically (1) whether the trustee’s decision is open to challenge when the failure to take a consideration into account is not attributable to a breach of fiduciary duty on the part of the . .
Cited – Pitt and Another v Holt and Others ChD 18-Jan-2010
The deceased had created a settlement in favour of his wife. He suffered serious injury and placed the damages in trust, but in a form which created an unnecessary liability to Inheritance Tax on his death. The wife’s mental health act receiver now . .
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 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 . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 July 2022; Ref: scu.181635