Category: Trusts

In Re Brockbank: 1948

A new trustee was to be appointed. The beneficiaries, all of full age and capacity wanted the remaining trustee to appoint someone they nominated. The trustee purported to exercise the discretion given to him in the trust deed and appointed someone else.
Held: The court would not interfere in the exercise of a discretion properly exercised by a trustee. ‘It is said that where all the beneficiaries concur, they may force a trustee to retire, compel his removal and direct the trustees, having the power to nominate their successors, to appoint as such successors such persons or person corporate as may be indicated by the beneficiaries, and it is suggested that the trustees have no option but to comply. I do not follow this. The power of nominating a new trustee is a discretionary power, and in my opinion is no longer exercisable and indeed can no longer exist if it has become one of which the exercise can be dictated by others.’

Judges:

Vaisey J

Citations:

[1948] Ch 206, [1948] 1 All ER 287

Statutes:

Trustee Act 1925

Cited by:

Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Cited – Barbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 30 April 2022; Ref: scu.223771

Hourigan v Trustees Executors and Agency Co Ltd: 1934

(Australia) The defence of laches may be raised in answer to a claim by a beneficiary of an express trust where there had been acquiescence or ‘gross laches’.

Citations:

(1934) 51 CLR 619

Cited by:

Cited – Patel and others v Shah and others CA 15-Feb-2005
The parties entered into a commercial agreement for the sale and purchase of properties.
Held: The claimants had failed to meet their part of the bargain, and had failed to make mortgage payments, leaving the defendants to do so. The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts

Updated: 30 April 2022; Ref: scu.223439

Belmont Finance Corporation Ltd v Williams Furniture Ltd: CA 1979

The company directors operated an elaborate scheme to extract value from Belmont by causing it to buy the shares of a company called Maximum at a considerable overvalue. This was a breach of the fiduciary duties of the directors. They sought to recycle the profit on the sale of Maximum so that it could be used to fund the purchase by three companies associated with the directors of Belmont’s own shares. This was not only a breach of the directors’ fiduciary duty but a criminal contravention of section 54 of the 1948 Act. Belmont went into liquidation, and an action was brought in its name by receivers for damages for breach of duty against the directors who had authorised the transaction, and for an account on the footing of knowing receipt against the three companies.
Held: An employee’s knowledge is not to be treated as the employer’s knowledge: ‘But in my view such knowledge should not be imputed to the company, for the essence of the arrangement was to deprive the company improperly of a large part of its assets. As I have said, the company was a victim of the conspiracy. I think it would be irrational to treat the directors, who were allegedly parties to the conspiracy, notionally as having transmitted this knowledge to the company; and indeed it is a well recognized exception from the general rule that a principal is affected by notice received by his agent that, if the agent is acting in fraud of his principal and the matter of which he has notice is relevant to the fraud, that knowledge is not to be imputed to the principal. So in my opinion the plaintiff company should not be regarded as party to the conspiracy on the ground of lack of necessary guilty knowledge.’

Judges:

Buckley LJ

Citations:

[1979] Ch 250, [1978] 3 WLR 712, [1979] 1 All ER 118

Statutes:

Companies Act 1948 54

Jurisdiction:

England and Wales

Citing:

See also – Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .

Cited by:

See also – Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .
Applied – Attorney-General’s Reference (No. 2 of 1982) CACD 1984
Two men were charged with theft from a company which they wholly owned and controlled. The court considered the actions of company directors in dishonestly appropriating the property of the company, and whether since the title to the goods was . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
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 . .
Lists of cited by and citing cases may be incomplete.

Trusts, Company

Updated: 30 April 2022; Ref: scu.214198

Marsh v von Sternberg: QBD 1986

In a constructive trust case, a discount from the open market price given to a sitting tenant by the landlord selling a flat was treated as a relevant contribution by the sitting tenant.

Judges:

Bush J

Citations:

[1986] 1 FLR 526

Cited by:

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 – Curley v Parkes CA 25-Oct-2004
The claimant sought leave to an appeal an order dismissing his claim for an interest in the property owned by his former partner and in which they had co-habited. This was the second such house. He sought an interest under a resulting trust, having . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 30 April 2022; Ref: scu.199950

Rimmer v Rimmer: 1953

Where it is not possible for a court to identify the precise contributions made by partners to a property, the court may take a view that ‘They will not necessarily be equal, but may be held so where that conclusion accords with the broad merits of the respective claims or with what is fair and reasonable when there is some difficulty or uncertainty in assessing the contributions.’

Citations:

[1953] 1 QB 63

Cited by:

Cited – McFarlane v McFarlane CANI 1972
The parties disputed their respective shares in the family home. The facts in Pettitt and Gissing ‘were not such as to facilitate or encourage a comprehensive statement of this vexed branch of the law’ and ‘much remains unsettled.’ The court . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 30 April 2022; Ref: scu.199948

Walker v Hall: CA 1984

The court considered the way of distributing property purchased by an unmarried couple: ‘When such a relationship comes to an end, just as with many divorced couples, there are likely to be disputes about the distribution of shared property. How are such disputes to be decided? They cannot be decided in the same way as similar disputes are decided when there has been a divorce. The courts have no jurisdiction to do so. They have to be decided in accordance with the law relating to property . . There is no special law relating to property shared by cohabitees any more than there is any special law relating to property used in common by partners or members of a club. The principles of law to be applied are clear, though sometimes their application to particular facts are difficult. In circumstances such as arose in this case the appropriate law is that of resulting trusts. If there is a resulting trust (and there was one in this case) the beneficiaries acquire by operation of law interests in the trust property. An interest in property which is the consequence of a legal process must be identifiable. It must be more than expectations which at some later date require to be valued by a court . .’
Dillon LJ: ‘. . . the law of trusts has concentrated on how the purchase money has been provided and it has consistently been held that where the purchase money for the property acquired by two or more persons in their joint names has been provided by those persons in unequal amounts, they will be beneficially entitled as between themselves in the proportions in which they provided the purchase money. This is the basic doctrine of the resulting trust and it is conveniently and cogently expounded by Lord Upjohn in Pettitt v Petitt [1970] AC 777 at p 814’ and ‘. . . it is not open to this court, in my judgment, in the absence of specific evidence of the parties’ intention, to hold that 33 Foxberry Road belongs beneficially to Mr Hall and Mrs Walker in equal shares, notwithstanding their unequal contributions to the purchase price, simply because it was bought to be their family home and they intended that their relationship should last for life. Equally it is not open to this court to ‘top up’ Mrs Walker’s share, beyond what it would be on the mere basis of her financial contribution, on some broad notion of what would be fair simply because the house was bought as the family home; the court could no doubt do this in an appropriate case in proceedings under s.24 of the 1973 Act but the discretion under that section is not available in the present case.’

Judges:

Lord Justice Lawton, Lord Justice Dillon, Lord Justice Kerr

Citations:

[1984] FLR 126

Statutes:

Matrimonial Proceedings and Property Act 1970, Matrimonial Causes Act 1973

Jurisdiction:

England and Wales

Citing:

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

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 – Turton v Turton CA 1988
When ascertaining the beneficial interests in a family home purchased by an unmarried couple, those interests had to be ascertained from consideration of the intentions of the parties at the time of the purchase; they were not to be left for . .
Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Cited – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 30 April 2022; Ref: scu.199945

Forsyth v Forsyth: 1891

Jeune J said: ‘Nunneley v. Nunneley seems to me to go the whole length of deciding that whatever be the law applicable to the settlements the effect of S.5 of the 22 and 23 Vict. c. 61, is to give this court power to vary the settlements in its discretion according to the principles laid down in that section.’

Judges:

Jeune J

Citations:

[1891] P 636

Statutes:

Matrimonial Causes Act 1859 5 22

Citing:

Cited – Nunneley v Nunneley 1890
The court considerd the power to vary a trust: ‘The language of the Act is exceedingly wide. I am clearly of opinion that the power thereby conferred extends to a settlement though made in another country and according to the law of that country.’ . .

Cited by:

Cited – Charalambous v Charalambous; C v C (Ancillary Relief: Nuptial Settlement) CA 30-Jul-2004
The parties had been wealthy. Whilst still married, substantial sums had been placed in a trust. Their business interests had crashed and both faced personal bankruptcy. The husband appealed an order setting aside the trust.
Held: A clause in . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 30 April 2022; Ref: scu.199723

Nunneley v Nunneley: 1890

The court considerd the power to vary a trust: ‘The language of the Act is exceedingly wide. I am clearly of opinion that the power thereby conferred extends to a settlement though made in another country and according to the law of that country.’ The English court varied a settlement made in Scotland and in Scottish form of movables and immovables in Scotland.

Judges:

President

Citations:

[1890] 15 App Cas 186

Statutes:

Matrimonial Causes Act 1859

Cited by:

Cited – Forsyth v Forsyth 1891
Jeune J said: ‘Nunneley v. Nunneley seems to me to go the whole length of deciding that whatever be the law applicable to the settlements the effect of S.5 of the 22 and 23 Vict. c. 61, is to give this court power to vary the settlements in its . .
Cited – Charalambous v Charalambous; C v C (Ancillary Relief: Nuptial Settlement) CA 30-Jul-2004
The parties had been wealthy. Whilst still married, substantial sums had been placed in a trust. Their business interests had crashed and both faced personal bankruptcy. The husband appealed an order setting aside the trust.
Held: A clause in . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 30 April 2022; Ref: scu.199722

Fearns v Young: 1804

A trustees’ duty may extend to taking or defending proceedings to protect the assets of the trust.

Citations:

(1804) 10 Ves 184

Cited by:

Cited – Alsop Wilkinson v Neary and Others ChD 4-Nov-1994
The second defendant, a solicitor, had fraudulently taken money from trusts, and paid money into trusts for his own family. It was claimed that the payments were intended to defeat the recovery of the funds. The trustees sought protection on costs . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 30 April 2022; Ref: scu.198264

Harris v Goddard: CA 1983

In a divorce petition, the petitioner sought, under section 24 of the 1973 Act, to sever the joint tenancy in the family home. The respondent died in a car crash before the hearing.
Held: The mere inclusion of such a prayer did not itself operate to sever the joint tenancy. The desire to sever must be immediate. A prayer in a petition was an invitation to a court at some future time to sever the interests, and was not immediate. The joint tenancy had not been severed and the petitioner took the entire property.

Judges:

Lawton LJ

Citations:

[1983] 3 All ER 242, [1983] 1 WLR 1203

Statutes:

Matrimonial Causes Act 1973 24

Jurisdiction:

England and Wales

Cited by:

Cited – H M Customs and Excise and Another v MCA and Another; A v A; Re MCA CA 22-Jul-2002
The husband and wife divorced and a property adjustment order applied for. The husband had been convicted and a drugs proceeds order made under the 1994 Act. The order had not been satisfied, and the receiver applied for money from the matrimonial . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 29 April 2022; Ref: scu.189964

Craigdallie v Aikman: PC 14 Jun 2013

A chapel was acquired with the subscriptions of a congregation which seceded from the Church of Scotland in 1737 and subsequently split over whether a magistrate might suppress heresy. Each of the rival groups claimed that the chapel belonged to them.
Held: No case was made to enable the court to say, that the adherents to the original opinions should, under such circumstances, for that adherence forfeit their rights. If, in the course of a schism, a few, wish to depart from the church’s constitution and set up their own church, they are at liberty to do so. But, subject to the provisions of the church’s constitution, they are not at liberty to take with them property belonging to the church from which they are seceding: ‘… if property was given in trust for A, B, C, etc., forming a congregation for religious worship; if the instrument provided for the case of a schism, then the court would act upon it; but if there was no such provision in the instrument, and the congregation happened to divide, he did not find that the law of England would execute the trust for a religious society, at the expense of a forfeiture of their property by the cestui que trusts, for adhering to the opinions and principles in which the congregation had originally united. He found no case which authorised him to say that the court would enforce such a trust, not for those who adhered to the original principles of the society, but merely with a reference to the majority; . . ‘

Judges:

Lord Eldon LC

Citations:

(1820) 2 Bli 529, (1813) 1 Dow 1, [1813] EngR 392, (1813) 1 Dow PC 1, (1813) 3 ER 601

Links:

Commonlii

Cited by:

Applied – General Assembly of Free Church of Scotland v Overtoun HL 1904
Craigdallie stated settled law: ‘My Lords, I disclaim altogether any right in this or any other civil court of this realm to discuss the truth or reasonableness of any of the doctrines of this or any other religious association, or to say whether . .
Cited – The Bahamas District of the Methodist Church in the Caribbean and the Americas and Others v The Hon Vernon J Symonette M P Speaker of the House of Assembly and 7 Others (No 70 of 1998) and Ormond Hilton Poitier and 14 Others v The Methodist Church PC 26-Jul-2000
PC (The Bahamas) The Methodist community had split, eventually leading to a new Act. Others now challenged the constitionality of the Act, and that lands had been transferred in breach of the constitution.
Explained – Attorney-General v Pearson 1817
No Alteration to Charty’s Objects
A protestant dissenters’ meeting house in Wolverhampton which was declared by a trust deed to be held for ‘the worship and service of God’ was the subject of a dispute between the schismatic congregation. The issue was the nature of the worship . .
Not followed – Varsani and others v Jesani, Patel and Her Majesty’s Attorney-General CA 3-Apr-1998
A Hindu religious sect, constituted as a charity, had split into two factions.
Held: The court had jurisdiction to order that the assets of the sect should be divided under the powers in the Act, and held upon separate trusts for the two . .
Cited – Couper v Burn 1859
The court considered a dispute as to the doctrine of the Free Church of Scotland. In doing so it was not restricted to the original documents but could look at doctrinal developments to the date of the action. . .
Cited – The Free Church of Scotland v The General Assembly of the Free Church of Scotland SCS 24-Mar-2005
Each group claimed to by the true Free Church of Scotland. The dispute had a very long history. One claimed that the other had abandoned a fundamental principle of the faith, the right of ‘continued protest’.
Held: It was necessary to examine . .
See Also – Craigdallie And Others v Aikman And Others PC 21-Jul-1820
. .
Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical, Trusts

Updated: 29 April 2022; Ref: scu.187516

Springett v Defoe: CA 1992

Partners lived together, without being married, as secure joint tenants. They exercised the right to buy, contributing three quarters and one quarter of the price respectively. At the time they intended to marry. They did not discuss he shares, and no declaration of trust was made. One party sought an equal division on the sale.
Held: A common shared intention to share the beneficial interest in a property must be communicated. It cannot mean an intention which was in fact in both minds, but about which nothing was said. Accordingly the presumption of a resulting trust was not displaced, and the shares were as originally contributed.

Citations:

(1992) 65 P and CR 1, (1992) 24 HLR 552

Jurisdiction:

England and Wales

Citing:

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

Cited – Allen and Another v Rochdale Borough Council CA 23-Mar-1999
Land was sold. It had been used as playing fields. The freehold and leasehold interests in the land were held by the respondent, and the claimants asserted it was held as bare trustees for them as charitable trustees for the school foundation. The . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 29 April 2022; Ref: scu.187403

In re Montagu’s Settlement Trusts: 1987

In the context of knowing receipt, a categorisation of knowledge is used to determine whether a person is bound by notice.
Sir Robert Megarry V-C said: ‘The cold calculus of constructive and imputed notice does not seem to me to be an appropriate instrument for deciding whether a [person’s] conscience is sufficiently affected for it to be right to bind him by the obligations of a constructive trustee.’

Judges:

Sir Robert Megarry V-C

Citations:

[1987] Ch 264

Jurisdiction:

England and Wales

Cited by:

Cited – 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 – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Cited – Royal Brunei Airlines SDN BHD v Tan PC 24-May-1995
(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective . .
Cited – Criterion Properties Plc v Stratford UK Properties Llc and others ChD 27-Mar-2002
Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Updated: 29 April 2022; Ref: scu.187273

In re Bucks Constabulary Widows and Orphans Fund Friendly Society (No 2): 1979

In the absence of any contractual obligation otherwise, the funds of a mutual society must be distributed equally on a dissolution.

Citations:

[1979] 1 WLR 936

Jurisdiction:

England and Wales

Cited by:

Cited – Elvridge v Coulson ChD 15-Jul-2003
An unregistered friendly society was dissolved. The governing instrument provided that the votes should be counted according to value, and that a vote of five sixths of such members by value were need to dissolve the company. Members claimed to be . .
Cited – Hunt and Another v McLaren and others ChD 4-Oct-2006
Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
Lists of cited by and citing cases may be incomplete.

Company, Trusts

Updated: 29 April 2022; Ref: scu.185827

In re Eaton: 1964

Citations:

[1964] 1 WLR 1269

Jurisdiction:

England and Wales

Cited by:

Cited – Mulkerrins v Pricewaterhouse Coopers HL 31-Jul-2003
The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 29 April 2022; Ref: scu.185415

The Carnegie Trustees for the Universities of Scotland v The University of St Andrews: HL 1968

The truster had left funds applying the income inter alia to the improvement and expansion of ‘the Universities of Scotland’. When the trust was created in 1901 only the four ancient universities existed. When Strathclyde and Heriot-Watt Universities came into existence they claimed to be entitled to participate in the benefit of the trust.
Held: The truster’s primary purpose was to benefit the youth of Scotland by assistance in paying fees in any institution in which they were receiving higher education and by assistance to those institutions in improving opportunities for study and research, and that therefore the expression ‘the Universities of Scotland’ included all the universities in Scotland at any particular time.
Lord Reid said: ‘The principal beneficiaries are ‘the Universities of Scotland’. Taken by itself, that phrase can equally well mean the universities which existed when the gift was made or the universities which exist at any time when benefits are to be distributed.’
and: ‘In order to determine what the truster meant by ‘the Universities of Scotland’ one must read the trust deed as a whole. I can entertain no doubt that his main general purpose was to benefit ‘the deserving and qualified youth’ of Scotland in whatever institution in Scotland they might be receiving higher education and to benefit all institutions providing such education . . I can find nothing in the language which he has used to require one to hold that new universities are excluded.’
Lord Guest said: ‘The expression ‘Universities of Scotland’ is general in character, and unless there is something in the deed to indicate the contrary, I should be disposed to hold that it means universities of Scotland from time to time and is not limited to those in existence at the date of the deed.’
Lord Upjohn also said: ‘Looking thus at the preamble, I find nothing in it which leads me to the conclusion that as a matter of language the truster was intending to benefit only the four ancient Universities, though no doubt it never occurred to him that there ever would be any other universities . . Indeed in such a deed [a trust deed providing for long term benefits in the form of income only] the natural meaning of the phrase ‘the Universities of Scotland’ in my opinion is that the Universities for the time being in existence are to be the object of [the truster’s] bounty year by year and not merely those in existence in 1901.’

Judges:

Lord Reid, Lord Guest, Lord Upjohn

Citations:

1968 SC (HL) 27

Jurisdiction:

Scotland

Cited by:

Distinguished – Unilodge Services Ltd v University of Dundee ScHC 10-Sep-2001
A lease had been granted to the University for student accommodation. The rent was to vary along with average rent increases for such accommodation in other Scottish Universities. The question was what bodies were included, either all bodies such . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 29 April 2022; Ref: scu.183031

Re Pauling’s Settlement Trusts (No 2): 1 Jun 1963

An application was made for the trustee to be replaced. The trustee complained that he would remain liable in certain events, and sought an indemnity from any new trustee out of the trust fund.
Held: A new trustees would be under ‘the normal duty of preserving an equitable balance, and if at any time it was shown they were inclining one way or the other, it would not be a difficult matter to bring them to account.’ The court asked to what extent a trustee may have a lien over the trust fund for the liabilities to which that trustee may be subject.

Judges:

Wilberforce J

Citations:

[1963] 1 All ER 857, [1963] 3 WLR 742, [1963] Ch 576

Citing:

See Also – Re Pauling’s Settlement Trusts (No.1) CA 29-May-1963
Property had been placed in trust for the daughter of the family, fearing that she might fritter it away. The trust was managed by the bank. The judge had found that, having misunderstood the powers of advancement given, the bank was liable to repay . .

Cited by:

Cited – X v A, B, C ChD 29-Mar-2000
Trustees sought guidance from the court as to investment in land which might become a liability because of clean up costs associated with the Act when it came into force. Would the trustees have a lien over other property of the deceased to pay the . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 29 April 2022; Ref: scu.182770

Grindley v Barker: 1798

Where a number of persons are entrusted with powers not of mere private confidence, but in some respect of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole.

Judges:

Eyre CJ

Citations:

(1798) 1 Bos and Pul 875, [1798] EngR 112, (1798) 1 Bos and Pul 229, (1798) 126 ER 875 (B)

Links:

Commonlii

Cited by:

Cited – Regina v Central and North-West London Mental Health NHS Trust QBD 9-Dec-2002
The patient sought his discharge. A panel of three sat, but only two members voted for his release.
Held: The Act allowed a panel with a minimum quorum of three, but also required a minimum of three to vote in favour. The mere majority was . .
Cited – Regina on the Application of Tagoe-Thompson v the Hospital Managers of the Park Royal Centre CA 12-Mar-2003
The applicant, detained under the section by the respondent, appealed refusal of a judicial review and a writ of habeas corpus. He had applied for a review of his detention. The review had been heard by a panel of three. Two judged in his favour. . .
Cited – Picea Holdings Ltd v London Rent Assessment Panel QBD 1971
The court asked whether a rent assessment committee constituted under the Rent Act 1968 could act by a majority in determining a fair rent. Was the well established rule of law in Grindley controlled either by something expressed in this statute or . .
Lists of cited by and citing cases may be incomplete.

Administrative, Trusts

Updated: 28 April 2022; Ref: scu.179767

Bray v Ford: HL 1896

An appellate court’s power to order a new trial is conditional on ‘some substantial wrong or miscarriage’ being established.
Lord Hershell said: ‘It is an inflexible rule of the court of equity that a person in a fiduciary position, such as the plaintiff’s, is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that, human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect. It has, therefore, been deemed expedient to lay down this positive rule. But I am satisfied that it might be departed from in many cases, without any breach of morality, without any wrong being inflicted, and without any consciousness of wrong-doing. Indeed, it is obvious that it might sometimes be to the advantage of the beneficiaries that their trustee should act for them professionally rather than a stranger, even though the trustee were paid for his services.’
Lord Halsbury LC: What ws required was something sufficiently serious to render the decision of the jury unsafe amounting to ‘a substantial wrong’ in which ‘the defendant was not permitted to present his case to the jury with the argument that his original complaint was true’.
Lord Herschell discussed the approach to damages in defamation cases: ‘The damages cannot be measured by any standard known to the law; they must be determined by a consideration of all the circumstances of the case, viewed in the light of the law applicable to them. The latitude is very wide. It would often be impossible to say that the verdict was a wrong one, whether the damages were assessed at andpound;500 or andpound;1,000.’

Judges:

Lord Herschell, Lord Halsbury LC

Citations:

[1895-99] All ER Rep 1011, [1896] AC 44

Jurisdiction:

England and Wales

Cited by:

Cited – Phipps v Boardman HL 3-Nov-1966
A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to . .
Cited – White v White CA 21-Jun-2001
A family had occupied a council house. They purchased the property under the right to buy scheme, with financial assistance from a son, who having paid the mortgage was to allow his parents to live in the house, but then it was to become his. The . .
Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
Cited – Cairns v Modi CA 31-Oct-2012
Three appeals against the levels of damages awards were heard together, and the court considered the principles to be applied.
Held: In assessing compensation following a libel, the essential question was how much loss and damage did the . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity, Litigation Practice, Damages, Defamation

Updated: 27 April 2022; Ref: scu.180411

Macdonald and Another v Hall and Others: HL 24 Jul 1894

A husband by an antenuptial contract of marriage disponed his whole estate, heritable and moveable, to his wife in liferent and to the child or children of the intended marriage, and the issue of the bodies of such children, whom failing to his own heirs whomsoever in fee, under a declaration that if there was no child alive at the dissolution of the marriage the wife’s liferent should be limited to pounds 150. There was no trust created by this deed, and the husband retained his whole estate in his own possession until his death. He died, predeceased by his only child, and survived by his wife and one grandchild, leaving a trust-disposition and settlement executed a few years before his death under which his wife was given the unrestricted liferent of his whole estate. After her death his whole estate was to be converted into money, his grandchild was to receive a legacy upon attaining twenty-one years of age, and after payment of other legacies the residue of the estate was to be divided among the nephews and nieces of himself and of his wife.
Held (rev. the decision of the First Division) that the conveyance to the issue of children of the marriage was contractual and irrevocable, and conferred on the grandchildren a protected spes successionis, which could not be defeated by their grandfather’s settlement.

Judges:

Lord Chancellor (Herschell), and Lords Watson, Macnaghten, Morris, and Shand

Citations:

[1894] UKHL 279, 31 SLR 279

Links:

Bailii

Jurisdiction:

Scotland

Family, Wills and Probate, Trusts

Updated: 27 April 2022; Ref: scu.634088

Lady Constance Mackenzie v Duke of Sutherland’s Trustees and Others: HL 15 May 1896

It is a settled principle of law that the operative words of a deed which are expressed in clear and unambiguous language, are not to be controlled or qualified by a recital or narrative of intention.
A granted a trust-disposition, whereby, ‘in order to make and secure additional provision for’ his second son, ‘and the other heirs of entail succeeding to him in the lands and estate of Cromartie, to enable them to support the dignity and title of Earl of Cromartie,’ he conveyed a number of securities to trustees, and directed them after his death to pay the free annual proceeds of the trust funds to his second son and the heirs-male of his body, whom failing to certain substitutes, ‘whom falling to the heirs-female of the body’ of the said second son.
The truster’s second son was survived by two daughters, of whom the elder succeeded to the earldom of Cromartie.
Held (rev. the judgment of the Second Division) that the expression ‘heirs-female,’ not being ambiguous, could not be controlled or qualified by the narrative of intention, and that the two daughters were entitled, equally between them, to the income of the trust fund.

Judges:

Lord Chancellor (Halsbury), Lord Watson, Lord Herschell, Lord Shand, and Lord Davey

Citations:

[1896] UKHL 628, 33 SLR 628

Links:

Bailii

Jurisdiction:

Scotland

Trusts

Updated: 27 April 2022; Ref: scu.634017

Ross v Ross: HL 27 Jul 1896

In an action of accounting raised by an heir of entail to large estates on attaining majority against his mother for her intromissions as his sole tutor and curator, held that the allowance to which she was entitled for the heir’s maintenance and upkeep of establishments was to be determined with reference to the whole circumstances as they had arisen, and in particular with reference to what a prudent guardian would allow in order to secure for his ward the advantage of living with his mother.
Interlocutors of First Division varied, and allowance fixed at pounds 3000 a-year.

Judges:

Lord Chancellor (Halsbury), and Lords Watson, Herschell, and Shand

Citations:

[1896] UKHL 10, 34 SLR 10

Links:

Bailii

Jurisdiction:

Scotland

Trusts

Updated: 27 April 2022; Ref: scu.634023

Train v Buchanan’s Trustee (Clapperton): HL 25 May 1908

A testator directed his trustees to hold a certain sum and to pay to a beneficiary during his lifetime ‘either the whole or only a portion of the annual revenue thereof, and that subject to such conditions and restrictions, all as my trustees in their sole and absolute discretion think fit’; and on the beneficiary’s death to pay to his children the sum ‘with any revenue accrued thereon that has not been paid’ to the beneficiary; failing such children the sum ‘and accumulations of revenue, if any,’ fell into residue. The trustees from time to time paid the beneficiary some very small sums. The beneficiary having assigned his interest in the trust, the assignee brought an action to obtain the unpaid balance of revenue on the ground that the trustees had never exercised the discretion given them to restrict the amount to be paid, and consequently that the whole annual revenue had become the property of the beneficiary.
Held, in the circumstances of the case, that the trustees had exercised the discretion conferred upon them.

Judges:

Lord Chancellor (Loreburn), Earl of Halsbury, Lord Ashbourne, Lord Robertson, and Lord Collins

Citations:

[1908] UKHL 682, 45 SLR 682, 46 SLR 682

Links:

Bailii

Jurisdiction:

Scotland

Trusts, Wills and Probate

Updated: 26 April 2022; Ref: scu.621512

Johnstone v Mackenzie’s Trustees: HL 26 Jul 1912

A testator conveyed his whole estate to trustees for the following purposes-( a) payment of debts and ‘the expenses of executing this trust’ ( b) giving the widow ‘the liferent use and enjoyment of my dwelling-house . . together with the whole household furniture and plenishing therein at the time of my death . . without, however, any obligation upon her to replace articles broken or perishing with the using . . and in the event of the said dwelling-house . . being sold by my trustees, as they are hereby with the consent of my said wife empowered to do, they shall pay to her the annual income of the price . . obtained therefor during all the days of her life, declaring that the said liferent provisions shall be for the alimentary use of my said wife, and shall not be assignable by her or affectable by the diligence of her creditors’ ( c) payment to the widow, in name of aliment allenarly, of an annuity at the rate of pounds 500 per annum; ( d) payment of two legacies to two brothers; ( e) payment, after setting aside the sum of pounds 20,000 to provide for the foresaid annuity, of one-half of the residue to the widow, and the other half in certain proportions to the two brothers, and, on the death of the widow, of the dwelling-house and the sum set aside to provide the annuity and ‘any surplus revenue accrued thereon’ in the same proportions to the two brothers.
Held ( rev. decision of the Second Division) that the widow’s interest in the house was a liferent, not a right of occupancy, and consequently that she was liable for feuduty, proprietor’s taxes, and landlord’s repairs.

Judges:

Lord Macnaghten, Lord Atkinson, and Lord Shaw

Citations:

[1912] UKHL 986, 49 SLR 986

Links:

Bailii

Jurisdiction:

Scotland

Trusts

Updated: 25 April 2022; Ref: scu.619248

Muir’s Trustees v Williams: HL 1943

The law against perpetuities in Scotland is entirely of statutory origin.

Judges:

Lord Thankerton

Citations:

1943 SC (HL) 47

Jurisdiction:

Scotland

Cited by:

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

Trusts

Updated: 24 April 2022; Ref: scu.186363

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 own name. The father sought a conveyance of the two properties purchased into his own name, saying th eproperties were held on trust for him. The order was made upon the Lord Ordinary preferring the father’s evidence. The son’s appeal to the Inner House succeeded on the basis that the Lord Ordinary had gone ‘plainly wrong’. The father now appealed, saying that it wass not open to the Inner House to reverse such a finding.
Held: The appeal succeeded. Of the eight matters which concerned the Inner House, only four were significant and each had been considered by the lower court. Nor had the Inner House looked at the evidence as a whole. The essential issues in the case were ones of credibility of the witnesses. There were stark conflicts, and it was a matter for judge’s assessment of the witnesses. Hamilton had been misapplied.

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Hughes

Citations:

[2013] UKSC 58, [2013] 1 WLR 2477, [2013] WLR(D) 323, 2013 GWD 25-471, 2013 SLT 1212, UKSC 2012/0112

Links:

Bailii, WLRD, Bailii Summary, SC Summary, SC

Jurisdiction:

Scotland

Citing:

Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
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. . .
Appeal from – McGraddie v McGraddie and Another SCS 13-Mar-2012
. .
Cited – Clarke v Edinburgh and District Tramways Co HL 1919
The House considered the ability of an appellate court to reconsider the facts.
Held: The privileges enjoyed by a trial judge extend not only to questions of credibility.
Lord Shaw said that the judge enjoys ‘those advantages, sometimes . .
Cited – Yuill v Yuill CA 1944
Appellate Court’s Caution in Reassessing Facts
The Court of Appeal was invited to reverse the decision of the judge at first instance to accept the evidence of the petitioner (no evidence having been called by the respondent).
Held: The court considered the caution needed when overturning . .
Cited – Thomson v Kvaerner Govan Limited HL 31-Jul-2003
The defendant appealed reversal on appeal of the award of damages aganst them. The pursuer had been working within the hull of a ship, and the plank on which he was standing had snapped, causing him to fall. The plank should have been of sufficient . .
Cited – Hamilton and others v Allied Domecq Plc (Scotland) HL 11-Jul-2007
The pursuers had been shareholders in a company which sold spring water. The defenders took shares in the company in return for promises as to the promotion and distribution of the bottled water. The pursuers said that they had failed to promote it . .
Cited – Anderson v City of Bessemer City, North Carolina 19-Mar-1985
United States Supreme Court – The court explained some considerations for the deference to be given by an appellate court to findings of fact made by a lower court: ‘The rationale for deference to the original finder of fact is not limited to the . .
Cited – Housen v Nikolaisen 28-Mar-2002
Supreme Court of Canada – Torts – Motor vehicles – Highways – Negligence – Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge . .
Cited – Re B (A Child) (Care Proceedings: Threshold Criteria) SC 12-Jun-2013
B had been removed into care at birth. The parents now appealed against a care order made with a view to B’s adoption. The Court was asked as to the situation where the risks were necessarily only anticipated, and as to appeals against a finding of . .
Cited – Brownlee’s Executrix v Brownlee 1908
A party claiming that a property transfer was by way of gift has the onus of displcing the presumption in law against donation. . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – 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 . .

Cited by:

Cited – Henderson v Foxworth Investments Limited and Another SC 2-Jul-2014
It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
Held: The appeal was allowed. The critical issue was whether ‘the alienation was made for . .
Cited – Carlyle (Scotland) v Royal Bank of Scotland Plc SC 11-Mar-2015
Assessing Whether 1st Judge was Plainly Wrong
The Court was asked whether, on an objective assessment of a what a developer and the bank had said to each other, the bank intended to enter into a legally binding promise to advance sums in the future to fund not only the developers purchase of . .
Cited – Perry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .
Cited – Walsh v The Council of The Borough of Kirklees QBD 5-Mar-2019
No demonstrable error of assessment – no appeal
The claimant cyclist appealed from refusal of damages after being thrown from her bike on hitting a pothole in the road. The court had found it unproven that the pothole was dangerous.
Held: The evidence had been difficult. The court noted . .
Cited – DB v Chief Constable of Police Service of Northern Ireland SC 1-Feb-2017
The appellant said that the police Service of Northern Ireland had failed properly to police the ‘flags protest’ in 2012 and 2013. The issue was not as to the care and effort taken, but an alleged misunderstanding of their powers.
Held: Treacy . .
Cited – AR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another SC 30-Jul-2018
The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the . .
Cited – Stocker v Stocker SC 3-Apr-2019
The parties had been married and divorced. Mrs S told M S’s new partner on Facebook that he had tried to strangle her and made other allegations. Mrs S now appealed from a finding that she had defamed him. Lord Kerr restated the approach to meaning . .
Cited – Simon and Others v Lyder and Another PC 29-Jul-2019
(Trinidad and Tobago) The Board was asked as to the well-known conundrum in the common law of defamation, namely the extent to which (if at all) two or more different statements made upon different occasions by the same defendant may be aggregated . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Trusts

Updated: 24 April 2022; Ref: scu.514220

Free Church of Scotland and Others v Macknight’s Trustees: SCS 14 Jan 1916

In an action of count, reckoning, and payment by the beneficiaries under a trust for religious purposes, they averred that certain payments of income tax had not been recovered owing to the negligence of the trustees and their law agents. The tax had been paid on demand for a number of years, when it was brought to the knowledge of the trustees and their law agents that as a result of a decision of the House of Lords in an English case they had all along been entitled to recover it. The trustees thereupon recovered the tax for the previous three years, the limit of recourse allowed by the Income Tax Acts. The beneficiaries sued for the amount of the income tax for the years preceding these three.
Held in the circumstances that neither the trustees nor their law agents were personally liable for failure to recover the income tax.

Citations:

[1916] SLR 260

Links:

Bailii

Jurisdiction:

Scotland

Trusts, Negligence

Updated: 23 April 2022; Ref: scu.618260

Compton v Compton: FD 1960

The court considered whether trusts were to be deemed to be post nuptial settlements.
Marshall J said: ‘The first point taken by Mr. Beyfus on the wife’s behalf is fundamental. He has submitted that the four settlements in question are not ‘post-nuptial settlements made on the parties ‘whose marriage is the subject of the decree.’ This submission was made before the registrar, but later abandoned before the hearing was concluded. It has, however, been revived before me and I must deal with it. If he were right in that submission this court would have no jurisdiction to make any order upon this application. I do not entertain any doubt that this submission is wrong. These settlements are settlements of property made in the course of marriage, and they deal with the interests of the children of the marriage. In the disposal of the property for the benefit of each child the respondent wife has been given a voice both as trustee and under the power of appointment even though it is the husband who provides all the money. Under the settlements on the two daughters she also has a beneficial interest in reversion. A settlement can settle on parties to a marriage power over the disposal as well as over the property itself.’

Judges:

Marshall J

Citations:

[1960] P 201

Jurisdiction:

England and Wales

Cited by:

Cited – Charalambous v Charalambous; C v C (Ancillary Relief: Nuptial Settlement) CA 30-Jul-2004
The parties had been wealthy. Whilst still married, substantial sums had been placed in a trust. Their business interests had crashed and both faced personal bankruptcy. The husband appealed an order setting aside the trust.
Held: A clause in . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 20 April 2022; Ref: scu.199725

Wilson v Law Debenture Trust Corporation plc: ChD 1995

Rattee J upheld the trustees’ refusal to give reasons for a discretionary decision, on what he described as well established principles of trust law. He added: ‘Moreover, there is in my judgment sound reason for the parties to the trust instrument in the present case having conferred such a discretion on the trustee in the hope of minimising the potential for dispute and possibly litigation by various groups of employees and ex-employees, dissatisfied by an exercise of the trustee’s quantification of the amount to be transferred in a situation such as the present.’

Citations:

[1995] 2 All ER 337

Jurisdiction:

England and Wales

Trusts

Updated: 12 April 2022; Ref: scu.570866

Heugh v Scard: CA 1875

Sir George Jessel MR said: ‘In certain cases of mere neglect or refusal to furnish accounts, when the neglect is very gross or the refusal wholly indefensible, I reserve to myself the right of making the executor or trustee pay the costs of litigation caused by his neglect or refusal. But I expressly guard myself against saying that in every case of mere neglect, or even in every case of mere neglect, or even in every case of mere refusal, an honest executor or trustee who has fairly discharged his duty – an onerous and thankless one – is to pay costs . . In this case I find inexcusable delay, inexcusable refusal to furnish accounts, and misconduct in dealing with the trust fund . . I think he [the executor] must pay the costs of the suit, except the cost of vouching the accounts.’

Judges:

Sir George Jessel MR

Citations:

(1875) 33 LT 659

Cited by:

Applied – In Re Skinner ChD 1904
A beneficiary of a will trust brought an action for an account, having had little or no accounting from the executors and trustees (one a professional solicitor, entitled to charge) since the testator died more than two years before the action was . .
Cited – Royal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Cited – Blades v Isaac and Another ChD 21-Mar-2016
Claim by beneficiary under discretionary trust.
Held: A trustee’s wrongful failure to provide information does not necessarily justify an adverse costs order. . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 12 April 2022; Ref: scu.567858

Clarke and Another v Corless and Another: CA 31 Mar 2010

The claimants appealed against refusal of a declaration that a neighbouring access road and land was held on a constructive trust. They said that an agreement bewteeen the parties should have been effective to impose a trust on the defendants. The land had been retained as an access road when the estate was built, but then purchased by the defendants.
Held: The judge had a proper basis for his conclusions on the evidence presented. The appeal failed.

Judges:

Patten LJ

Citations:

[2010] EWCA Civ 338

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Pallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .
Appeal from – Clarke and Another v Corless and Another ChD 8-Jul-2009
The parties disputed whether one could retain for his own benefit land on an estate reserved for an estate road. A trust was claimed under Pallant saying that the parties had made an informal agreement before the property was purchased.
Held: . .
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 – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
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 – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd and Another CA 16-Nov-2005
The defendant had brought in the claimant in order to assist in satisfying its own obligations under a lease. The joint venture was not recorded in a formal agreement. The appellant asserted that a constructive trust had been created. The judge had . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 12 April 2022; Ref: scu.406677

Helmore v Smith: 1886

The relationship between partners is of a fiduciary nature.
Bacon V-C said: ‘If fiduciary relation means anything I cannot conceive a stronger case of fiduciary relation than that which exists between partners. Their mutual confidence is the life blood of the concern. It is because they trust one another that they are partners in the first instance; it is because they continue to trust one another that the business goes on.’

Judges:

Bacon V-C

Citations:

(1886) 35 Ch D 436

Jurisdiction:

England and Wales

Cited by:

Cited – Simms v Conlon and Another CA 20-Dec-2006
Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
Cited – Hosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
Lists of cited by and citing cases may be incomplete.

Company, Trusts

Updated: 12 April 2022; Ref: scu.248006

Stait v Fenner: 1912

The lease to Fenner contained a break clause. The lease was legally assigned to X and then to Y. Y then agreed to assign back to Fenner (but no formal assignment was entered). Fenner then ‘assigned’ to Z (the contract saying that he was not obliged to get in the bare legal estate outstanding in Y). Z then exercised the break clause.
Held: The beneficiary under a bare trust is not thereby constituted the agent of the trustee. A break clause was operable by the tenant if he gave notice and if he should pay all the rent and perform all the covenants up to the determination of the lease. The question for the court was whether that condition for payment and performance was a condition precedent to be performed before the expiration of the term: ‘it must have been intended, in construing a covenant of this kind, that the question whether the lease does or does not exist after the expiration of the seven or fourteen years should be capable of being decided there and then and not left to future contingency leaving both the lessor and the lessee in uncertainty as to whether they are bound by the lease or whether they are not.’ In this case the condition was a condition precedent.
Neville J held: ‘In my opinion, the legal estate in the term being outstanding, it was not competent for the lessee or any assignee of the lessee who had not the legal estate vested in him to give a notice.’

Judges:

Neville J

Citations:

[1912] 2 Ch 504

Jurisdiction:

England and Wales

Cited by:

Cited – Dun and Bradstreet Software Services (England) Ltd; Dun and Bradstreet Software Services Ltd v Provident Mutual Life Assurance Association and General Accident Linked Life Assurance CA 9-Jun-1997
Break clauses had been exercised on behalf of the plaintiffs. The defendant landlords appealed a decision upholding the notices. A penalty rent had been sought.
Held: There had been no sufficient agency established to validate the notice. The . .
Cited – JBW Group Ltd v Westminster City Council CA 12-Mar-2010
The tenant had applied to the landlord for consent to assign certain leases. The court had declared the right to exercise break clauses in certain leases as lost. The court had found the right to be lost after the assignment of the leases by the . .
Cited – Stodday Land Ltd and Another v Pye ChD 7-Oct-2016
The agricultural landlord sold part of his land subject to the respondent’s tenancy to the appellant. Before the transfer was registered, notices to quit were served by both the landlord and his buyer. The tenant challenged both notices in the . .
Lists of cited by and citing cases may be incomplete.

Trusts, Agency, Landlord and Tenant

Updated: 12 April 2022; Ref: scu.188165

Clarkson v Davies: PC 1923

In a case involving fraud, referring to Taylor v Davies, Lord Justice Clerk said that: ‘it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arises only by reason of that transaction.’

Judges:

Lord Justice Clerk

Citations:

[1923] AC 100

Citing:

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

Cited by:

Cited – 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 – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Cited – Williams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Cited – Halton International Inc Another v Guernroy Ltd CA 27-Jun-2006
The parties had been involved in investing in an airline to secure its future, but it was now said that one party had broken the shareholders’ or voting agreement in not allowing further investments on a pari passu basis. The defendants argued that . .
Lists of cited by and citing cases may be incomplete.

Company, Trusts, Torts – Other

Updated: 12 April 2022; Ref: scu.187433

Birmingham Midshires Building Society v Infields (A Firm): TCC 20 May 1999

The defendant solicitors had acted for the lenders and borrower in a mortgage transaction. The claimant sought repayment of the entire loan, alleging breach of fiduciary duty, in having preferred the interests of one client over those of another. The betrayal of trust inherent in a breach of duty must be a deliberate act. They alleged that he knew the property was to be used for letting in breach of their offer terms. The solicitor understood the lender to know of this intention, and was negligent in not confirming it, but there was no deliberate act in breach of trust. To extend the limitation period under s32, the claimants must show that they could not have discovered the breach with reasonable diligence. They also knew of the possibility of a claim before receiving the file. The could not extend the limitation period under s 14A by their delay in obtaining expert advice.

Judges:

Judge Bowsher QC

Citations:

[1999] EWHC Technology 232

Statutes:

Limitation Act 1980 14A 32

Citing:

Cited – Mothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
Questioned – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Trusts, Legal Professions

Updated: 11 April 2022; Ref: scu.135840

Meah v GE Money Home Finance Ltd: ChD 18 Jan 2013

Claims by mortgagor for compensation from his mortgagee for having sold the mortgaged property at allegedly an undervalue.

Judges:

Alan Steinfeld QC

Citations:

[2013] EWHC 20 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Cuckmere Brick Co Ltd v Mutual Finance Ltd CA 1971
A mortgagee selling as mortagee in possession must ‘take reasonable care to obtain the true value of the property at the moment he chooses to sell it’ and obtain the best price for the property reasonably obtainable on the open market. However, . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 11 April 2022; Ref: scu.470557

The Law Debenture Trust Corporation v Ural Caspian Oil Corp Ltd: ChD 9 Sep 1992

The burden of agreements binding on shares which had been assigned did not pass simpliciter with the shares.

Citations:

Gazette 09-Sep-1992

Jurisdiction:

England and Wales

Citing:

Appealed to – Law Debenture Trust Corporation Plc v Ural Caspian Oil Corp Ltd CA 10-Mar-1994
An assignment which was made intending to defeat a third party’s rights is not itself a cause of action. . .

Cited by:

Appeal from – Law Debenture Trust Corporation Plc v Ural Caspian Oil Corp Ltd CA 10-Mar-1994
An assignment which was made intending to defeat a third party’s rights is not itself a cause of action. . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 10 April 2022; Ref: scu.89823

McPhail v Doulton (on appeal from In re Baden’s Deed Trusts): HL 6 May 1970

The settlor asked whether the test for validity, in point of certainty of objects, is the same for trusts and powers, or whether the test for trusts is more demanding.
Held: The test is the same. The context was a provision, held to be a trust, for trustees to distribute income ‘to or for the benefit of any of the officers and employees or ex-officers or ex-employees of [a named company] or to any relatives or dependants of any such persons’ (with a power for the trustees to hold up income which did not, prevent the trustees distributing the retentions as income). The distinction between trusts, trust powers, and powers is narrow and artificial. What is to one a power of distribution coupled with a trust to dispose of the undistributed surplus, by accumulation or otherwise, may to another appear as a trust for distribution coupled with a power to withhold a portion and accumulate or otherwise dispose of it. It is not satisfactory that the validity of a disposition should depend on such delicate shading. To say that there is no obligation to exercise a mere power whereas a trust is mandatory and its execution may be compelled does not contain an exhaustive comparison of the trustees’ duties. Any trustee would surely make it his duty to know what is the permissible area of selection and then consider responsibly, in individual cases, whether a contemplated beneficiary was within the power and whether, in relation to other possible claimants, a particular grant was appropriate. A trustee with a duty to distribute, even among a potentially very large class, would not require the preparation of a complete list of names, but consider by class and category; and then select individuals according to their needs or qualifications. Can it be said that he is not carrying out the trust? There are differences between trust (trust powers) and powers, but as regards validity, they are not so great that complete, ascertainment is needed, for one but not in the other? Any distinction may lie in the extent of the survey which the trustee is to carry out. The difference may be one of degree rather than of principle. Trusts and powers are often blended, and the mixture may vary in its ingredients.’ A private trust for a large class of individuals can be so large as to make a private trust unworkable, and hence void.
Lord Wilberforce said that in the context of private trusts: ‘the court, if called upon to execute the trust power, will do so in the manner best calculated to give effect to the settlor’s or testator’s intentions. It may do so by appointing new trustees, or by authorising or directing representative persons of the classes of beneficiaries to prepare a scheme of distribution, or even, should the proper basis for distribution appear by itself directing the trustees so to distribute. The books give many instances where this has been done …’

Judges:

Lord Reid, Lord Hodson, Lord Guest, Viscount Dilhorne, Lord Wilberforce

Citations:

[1971] AC 424, [1970] UKHL 1, [1970] 2 All ER 228

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
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 – Hunt and Another v McLaren and others ChD 4-Oct-2006
Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
Cited – Gibbs v Harding and others ChD 12-Jan-2007
The testatrix left a will anticipating making another. The court was asked whether a clause leaving her estate to ‘be taken over by the Diocese of Westminster to hold in trust for the Black community of Hackney’ was valid.
Held: The gift was . .
Cited – Re Tuck’s Settlement Trusts CA 1-Nov-1977
By his will, Sir Adolph Tuck sought to ensure that his successors should be Jewish, and stated that the arbitrators of this must be the Chief Rabbi of his community. . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 10 April 2022; Ref: scu.180358

Gold and Another v Hill; Hill v Fold and Others: ChD 24 Aug 1998

A nomination of a beneficiary to take proceeds of a life policy, where that beneficiary was in turn to pay it on to somebody else, was akin to a secret trust, but nominations are not subject to Law of Property Act 1925 s 53 since a nomination is not a disposition.

Citations:

Times 24-Aug-1998, Gazette 16-Sep-1998

Statutes:

Law of Property Act 1925 53(1)( c)

Trusts

Updated: 08 April 2022; Ref: scu.80892

Burton and Another v FX Music Ltd and Another; Taube v FX Music Ltd: ChD 8 Jul 1999

To decide that a party had made itself a trustee of a promise, the court had first to look at whether the person making the promise had indicated he had intended such. Once clear instructions had been evidenced, and payments made, the court would be reluctant to find that no trust had been created. Letters requesting payment of royalties had been acted upon.

Citations:

Times 08-Jul-1999, [1999] EMLR 826

Jurisdiction:

England and Wales

Trusts, Equity

Updated: 08 April 2022; Ref: scu.78767

Barclays Bank Trust Co Ltd v McDougall and Others: ChD 27 Jun 2000

The deceased had created a trust with constructive trusts for his four children for life, and protective trusts for remoter issue. The last child had now died, and the initial trust period had expired. The trust provided that at this point the fund was held on trust for the grandchildren and remoter issue who had attained 21 equally and per stirpes. A grandchild was 21 at the date of the settlement but died without issue before the trust period expired. The court was asked whether his interest had vested and was to take a share.
Held: Once a deed created an apparent vested interest, clear words would be required to convert the same gift into a contingent one. A gift to grandchildren who had attained the age of 21 years, created vested interests. It did not create an interest contingent on them surviving the trust period. No sufficient words had been used in the trust to create a double contingency, and the requirement was to either survive the trust period or to attain the age of 21, but did not require both.

Judges:

Rimer J

Citations:

Times 03-Aug-2000, Gazette 03-Aug-2000

Jurisdiction:

England and Wales

Citing:

Cited – In re Duke, Hannah v Duke 1880
. .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 08 April 2022; Ref: scu.78223

The Venture: CA 1908

Contributions were made to the purchase price of a yacht.
Held: The court concluded that the contributor was entitled under a resulting trust to a pro rata equitable interest in the yacht. The payments were made at the time the yacht was purchased and for the purpose of the purchase.
Farwell LJ said: ‘On its being proved that Percy Stone had advanced a certain part of the purchase money, the presumption of law arose that he was beneficially entitled to a corresponding share in the yacht. It was for the plaintiff to displace that presumption by bringing evidence to the contrary; but she has entirely failed to bring any such evidence. The court must therefore give effect to the presumption, and must hold that, as the defendant paid a part of the purchase money, he acquired an interest in the yacht . .’

Judges:

Farwell LJ

Citations:

[1908] P 218

Jurisdiction:

England and Wales

Cited by:

Cited – Allen and Another v Rochdale Borough Council CA 23-Mar-1999
Land was sold. It had been used as playing fields. The freehold and leasehold interests in the land were held by the respondent, and the claimants asserted it was held as bare trustees for them as charitable trustees for the school foundation. The . .
Cited – Gravesend Corporation v Kent County Council KBD 1935
A school vested in the Corporation had been built with the assistance of financial contributions from the County Council. As a result of various legislative changes the County Council replaced the Corporation as the education authority and as the . .
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 08 April 2022; Ref: scu.187405

Bacchus v Maduro: LRA 21 Dec 2017

Beneficial Interests, Trusts and Restrictions : Severance
The Applicant bought a house together with the Respondent’s mother as joint tenants in 1966, and both lived in separate parts. They were not related nor were they in a relationship. Solicitors acting for Respondent and her mother purportedly sent a notice severing the tenancy in November 1995. This led to a restriction being placed on the title. A second notice was allegedly served by Respondent’s daughter in December 2003, when her mother was ill in hospital. Respondent’s died in March 2004. Applicant applied to remove the restriction and claimed that neither notice had been served. Held that both notices had been served in accordance with section 196(3) of the Law of Property Act 1925.

Citations:

[2017] EWLandRA 2017 – 0125

Links:

Bailii

Jurisdiction:

England and Wales

Registered Land, Trusts

Updated: 05 April 2022; Ref: scu.605824

North and Another v Wilkinson and Others: CA 9 Feb 2018

The court was asked whether a trust was validly created by the appellants’ father in favour of the 1st to 8th respondents (the respondents) over undivided shares in a business venture carried on by him as a sole trader.

Judges:

Gloser VP CA, David Richards LJJ

Citations:

[2018] EWCA Civ 161

Links:

Bailii

Jurisdiction:

England and Wales

Trusts

Updated: 04 April 2022; Ref: scu.604208

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 had accrued within a scheme, and there was a substantial anticipated surplus, the trustees could allow the employers to deal with this by them reducing the amount of contributions to the scheme. Lord Hoffmann stressed the perils inherent in linguistic arguments of the ‘expressio unius’ variety in the context of ‘a patchwork document like the pension scheme’.
Lord Hoffmann said that the maxim expressio unius, exclusio alterius is ‘often perilous’.

Judges:

Lord Slynn of Hadley Lord Steyn Lord Hoffmann Lord Clyde Lord Scott of Foscote

Citations:

Times 10-Apr-2001, Gazette 07-Jun-2001, [2001] UKHL 20, [2001] 2 All ER 417, [2001] 1 WLR 864

Links:

Bailii, House of Lords

Statutes:

Pensions Act 1995 37(1)(a)

Jurisdiction:

England and Wales

Citing:

Cited – Mettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
Cited – 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 . .
Cited – In Re Landau (A Bankrupt) ChD 1-Dec-1996
At the date of the bankruptcy the bankrupt was entitled to a pension, payable in the future on his attaining the age of 65 years. He was aged 61 when the bankruptcy order was made, and 64 when it was discharged. The trustee claimed to be entitled to . .
Cited – Re Vauxhall Motor Pension Fund 1989
The fact that a pension scheme cannot be amended to allow something to be done does not necessarily mean that a limited power to do that thing does not already exist within the scheme. . .
Disapproved – British Coal Corporation v British Coal Staff Superannuation Scheme Trustees Ltd 1994
The court considered the distinction between a power in relation to which the duty of the employer was limited to a duty of good faith and a power in respect of which the employer was a fiduciary and which was to be exercised solely in the interests . .

Cited by:

Cited – Aon Trust Corporation Ltd v KPMG (A Firm) and others CA 28-Jul-2005
The claimants were trustees of the defendant’s pension scheme. They sought additional payments to make up a shortfall in funds, on the basis that the fund was an earnings related pension scheme, and that the company therefore had obligations to make . .
Cited – Barnardo’s v Buckinghamshire and Others SC 7-Nov-2018
The Court considered the interpretation of a clause in a pension scheme trust deed which defines the phrase ‘Retail Prices Index’ and which allows the trustees of the pension scheme to adopt a ‘replacement’ of the officially published Retail Prices . .
Cited – Sveriges Angfartygs Assurans Forening (The Swedish Club) and Others v Connect Shipping Inc and Another SC 12-Jun-2019
The Court was asked as to the construction of the phrase ‘constructive total loss’, and in particular the calculation the expenditure to be taken into account in computing the cost of recovery and or repair, where notice of loss had been served . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Trusts, Employment

Updated: 04 April 2022; Ref: scu.84179

Patrick v Mckinley: CA 8 Dec 2017

Appeals from the dismissal of claims for a declaration of a proprietary interest in two freehold properties and in the shares of a company owning a third property or, in the alternative, for payment for work done by him on the properties on a quantum meruit basis.

Judges:

Lloyd-Jones L, David Richards LJ

Citations:

[2017] EWCA Civ 2068

Links:

Bailii

Jurisdiction:

England and Wales

Land, Trusts

Updated: 02 April 2022; Ref: scu.601141

Ong and Others v Ping: CA 12 Dec 2017

Judges:

Sir Brian Leveson P QBD, Underhill LJ, Sir Colin Rimer

Citations:

[2017] EWCA Civ 2069

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ong and Others v Ping ChD 17-Jun-2015
The parties disputed the beneficial interests in the proceeds of sale of a substantial property. Litigation had now continued for over twenty years. . .
Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 02 April 2022; Ref: scu.601140

Menzies v Menzies and Another: HL 17 Mar 1893

The only son and heir-apparent of a baronet and heir of entail, an officer in the army, and dependent on his father except for his pay, had for some years lived beyond his allowance, and had more than once to apply to his father to pay his debts. His father did so. The son again fell into debt, and consulted the family agent, his most pressing liability being a bill for pounds 3000 granted to a money-lender, on which he feared he might be made bankrupt, and so ruined in his profession. The son, if he survived his father, became absolutely entitled to the fee of the estates, which were worth upwards of pounds 300,000. After much correspondence and consultation, it was arranged that the estates should be disentailed and conveyed to trustees to hold for the father in liferent, and the son in liferent alimentary allenarly, and for the heirs of the son’s body, whom failing the heir to the baronetcy in fee. As part of the arrangement the son’s debts were to be paid, and an increased allowance secured to him by charges on the estates. The son about three years afterwards raised an action against the trustees and his father for reduction of the deeds by which the arrangement had been carried out, on the ground that his father and the family agent, in pursuance of a joint scheme which they had laid some years before, to deprive the pursuer of the fee of the estates, induced him to enter into the arrangement by false and fraudulent representation and fraudulent concealment, and that the pursuer had consented to the arrangement (1) under essential error, (2) under essential error induced by the father and his law-agent, and (3) under essential error fraudulently so induced.
The House- rev. the decision of the Second Division, and restoring the interlocutor of the Lord Ordinary (Low)-while negativing all idea of fraud, set aside the family arrangement, on the ground that the son had been induced to enter into it by representations made by the agent as to a matter of fact, viz., the possibility of raising the necessary funds in some other way, he having no legal advisers, and being ignorant of his own rights and powers.

Judges:

Lord Chancellor (Herschell), and Lords Watson, Ashbourne, Field, and Hannen

Citations:

[1893] UKHL 530, 30 SLR 530

Links:

Bailii

Jurisdiction:

England and Wales

Trusts, Legal Professions

Updated: 30 March 2022; Ref: scu.633296

W v M (TOLATA Proceedings: Anonymity): FD 25 Jun 2012

Proceedings in the Family Division were anonymised after the proceedings had been compromised, even though an earlier application for anonymity had been refused.

Judges:

Mostyn J

Citations:

[2012] EWHC 1679 (Fam)

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996 14

Jurisdiction:

England and Wales

Cited by:

Cited – XXX v Camden London Borough Council CA 11-Nov-2020
Anonymity in Court Proceedings – No two stage test
XXX appealed against the refusal to make orders anonymising her name and redacting certain details from published judgments. The appeal raised a point about the proper approach to applications for anonymisation under CPR 39.2. She brought . .
Lists of cited by and citing cases may be incomplete.

Trusts, Litigation Practice

Updated: 29 March 2022; Ref: scu.470752

Twin Benefits Ltd v Barker: ChD 19 Jun 2017

The defendant applied to have set aside an order allowing service on him of proceedings under a trust.
Held: The application succeeded.

Judges:

Marcus Smith J

Citations:

[2017] EWHC 1412 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Trusts, Jurisdiction

Updated: 27 March 2022; Ref: scu.588219

Barwick’s Case: 1597

A limitation of a remainder which would emerge by itself at some time in the future was not possible at law. A remainder is void unless it is preceded by some particular freehold estate created by the same instrument.
The Queen by letters patent made a demise for lives in consideration of the surrender, of a former lease also made by letters patent, a the time of the grant last made, the patentee had made several assignments and demises of the premises. Held the demise for lives is void.
A lease by the Queen in consideration of the surrender of all the lessee’s estate is
void, where the lessee has previously demised part.
If the consideration, be it executory or executed, or be it on record or not on record, be not truly performed, or if prejudice may accrue to the Queen by reason of non performance of it, the letters patent are void.

Citations:

(1597) 5 Co Rep 93b, [1572] EngR 27, (1572-1616) 5 Co Rep 93, (1572) 77 ER 199

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts, Landlord and Tenant

Updated: 26 March 2022; Ref: scu.222682

Lort-Williams v Lort-Williams: CA 1951

two individuals had taken out a single premium insurance policy on the life of Sir John Rolleston Lort-Williams. The benefits were payable to these trustees as ‘moneys payable under this policy, effected for the benefit of the widow or children or any of them of the assured in such shares and proportions and interest, and generally in such manner as the assured shall by will or deed revocable or irrevocable appoint or have so appointed’. The policy was for the benefit ‘of the widow . . ‘ of the assured in such amounts as he should decide by will or deed.
Held: Sommervell L.J. said: ‘Counsel for the husband admits that the words of s. 25 of the Act of 1950 have been given a wide meaning, but he relies that the interest of the wife was contingent in that (i) she has to survive the husband (ii) she has to survive him as his widow, and (iii) if there were children (the position might be obscure if there were not), she might take no interest at all if he appointed the whole fund to the children. I do not think that is sufficient to take the policy out of the meaning of ‘settlement’ in this section.’
Denning LJ said: ‘The word ‘settlement’ in s. 25 . . is not used in the conveyancing sense. It includes any provision made by a husband for the future benefit of his wife, if it proceeds on the footing of the then existing marriage. It does not cease to be a settlement on her because the provision is, not absolute, but only contingent, nor does it cease to be a settlement on her because it may in its terms also be applicable for the benefit of a wife by a subsequent marriage.’

Judges:

Somervell LJ, Denning LJ

Citations:

[1951] P 395, [1951] 2 All ER 241

Statutes:

Matrimonial Causes Act 1950 2

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Cited – Brooks v Brooks HL 29-Jun-1995
A director’s pension scheme could be treated as a post-nuptial marriage settlement where the director was the only scheme member. It was thus a matrimonial asset capable of variation by a court in ancillary relief proceedings in a divorce. The court . .
Lists of cited by and citing cases may be incomplete.

Family, Insurance, Trusts

Updated: 26 March 2022; Ref: scu.652158

Akita Holdings Ltd v The Honourable Attorney General of The Turks and Caicos Islands: PC 27 Mar 2017

(Turks and Caicos Islands) This appeal concerns the remedies available against a knowing recipient of property acquired at an undervalue from the government by a minister acting in breach of his fiduciary duty.

Judges:

Lord Neuberger, Lord Kerr, Lord Sumption, Lord Reed, Lord Carnwath

Citations:

[2017] UKPC 7, [2017] 2 WLR 1153, [2017] WLR(D) 216

Links:

Bailii, WLRD

Jurisdiction:

Commonwealth

Torts – Other, Trusts

Updated: 24 March 2022; Ref: scu.581724