Category: Trusts

Miss Frances Hay, A Minor, and Her Curators v Robert Hay, Esq, of Drumelzier: HL 25 Jun 1789

Entail – Succession – Heirs Male. – Circumstances in which the words ‘ heir male’ in an entail, received a strict technical interpretation, though they had been used with the same meaning, so far as appeared from the deed, as that of ‘ heirs male of the bodies’ of the substitutes, which had been used in other parts of the deed.

Citations:

[1789] UKHL 3 – Paton – 142

Links:

Bailii

Jurisdiction:

Scotland

Land, Trusts

Updated: 23 March 2022; Ref: scu.580999

Buckley and Others v Barlow and Others: ChD 1 Dec 2016

Application for directions by the current trustees of a trust declared by an Indenture relating to a plot of land on which was built a church for the use of the members of a religious sect which emerged in the 1840s and was known as the Church of the Holy Agapemony or, more simply, the Agapemonites.

Judges:

Andrew Simmonds QC

Citations:

[2016] EWHC 3017 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Trusts

Updated: 23 March 2022; Ref: scu.654516

Hodgson v Marks: CA 12 Mar 1971

The plaintiff had transferred her house to her lodger, expressing it to be for her love and affection for him. The judge at first instance had held that the true intention of the plaintiff had been that she would continue to live there as before and that she owned the equity. The lodger had sold the title to the defendant who bought it with the assistance of a mortgage. He knew of her presence in the house, but not of the arrangement. The court was now asked as to the resulting position within the 1925 legislation.
Held: A registered proprietor, not being a purchaser for value and without notice of an occupier’s interests, will hold the legal estate on Trust for the occupier with no right to assign the equity.

Judges:

Russell, Buckley, Cairns LJJ

Citations:

[1971] EWCA Civ 8, [1971] Ch 892, (1971) 22 P and CR 586, [1971] 2 WLR 1263, [1971] 2 All ER 684

Links:

Bailii

Statutes:

Land Registration Act 1925 70(1)(g), Law of Property Act 1925 53

Jurisdiction:

England and Wales

Citing:

Appeal from – Hodgson v Marks ChD 1970
The plaintiff, an elderly widow, transferred her house into the name of her lodger, but remained in occupation of the house, on exactly the same basis as before, until the lodger sold the house and the purchaser had mortgaged it to a building . .
Cited – Hunt v Luck CA 1902
Dr Hunt owned properties for which the rents were collected by his agent. The land were conveyed to a Mr Gilbert, who then mortgaged them. After the doctor’s death, his personal representatives challenged the validity of the conveyance. When the . .
Cited – Barnhart v Greenshields PC 5-Dec-1853
Pemberton Leigh said: ‘With respect to the effect of possession merely, we take the law to be, that if there be a tenant in possession of land, a purchaser is bound by all the equities which the tenant could enforce against the vendor, and that the . .

Cited by:

Cited – United Bank of Kuwait Plc v Sahib and Others CA 2-Feb-1996
The bank appealed against a decision that the simple deposit of deeds with a bank did not take effect as an equitable charge.
Held: Depositing deeds with a bank is not sufficient to create a charge over them. The old law as to the creation of . .
Lists of cited by and citing cases may be incomplete.

Registered Land, Trusts

Updated: 23 March 2022; Ref: scu.262759

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 part of the funds to the trust fund. Both parties appealed.
Held: The doctrine of laches has no application to cases to which the Statutes of Limitation apply either expressly or by analogy.
The court considered the exercise of a power by the trustees: ‘Being a fiduciary power, it seems to us quite clear that the power can be exercised only if it is for the benefit of the child or remoter issue to be advanced or, as was said during argument, it is thought to be ‘a good thing’ for the advanced person to have a share of capital before his or her due time. That this must be so, we think, follows from a consideration of the fact that the parties to a settlement intend the normal trusts to take effect, and that a power of advancement be exercised only if there is some good reason for it. That good reason must be beneficial to the person to be advanced; it cannot be exercised capriciously or with some other benefit in view. The trustees, before exercising the power, have to weigh on the one side the benefit to the proposed advancee, and on the other hand the rights of those who are or may hereafter become interested under the trusts of the settlement.’

Judges:

Willmer, Harman, Upjohn LJJ

Citations:

[1963] EWCA Civ 5, [1964] Ch 303, [1963] 3 All ER 1, [1963] 3 WLR 742

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Re Pauling’s Settlement Trusts ChD 1962
Family money had been placed into a trust to be managed by a bank. It was said that the bank had wrongly advanced money to the daughter allowing her to fritter away large parts of the capital
Held: The bank had misunderstood the power of . .

Cited by:

Cited – Green and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
See Also – 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 . .
Cited – Re Hastings-Bass; Hastings v Inland Revenue CA 14-Mar-1974
Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the . .
Lists of cited by and citing cases may be incomplete.

Equity, Limitation, Trusts

Updated: 23 March 2022; Ref: scu.262803

Bull v Bull: CA 1955

The parties were mother and son who had purchased a property as joint tenants. The son contributed a greater part of the purchase price. The son then married, and agreements were reached as to occupation of different parts of the house. When those arrangements fell through, the son sought possession of the house.
Held: Neither of joint tenants is entitled to exclude the other from occupation of the property held as joint tenants at law. However, the joint tenancy was created for a particular purpose, and an order for sale was refused where the effect would be to defeat that purpose. The parties had intended at the time the house was bought that the property would be tenants in common.
Denning LJ: ‘The son is, of course, the legal owner of the house, but the mother and son are, I think, equitable tenants in common. Each is entitled in equity to an undivided share in the house, the share of each being in prportion to his or her respective contribution. Each of them is entitled to the possession of the land and to the use and enjoyment of it in a proper manner. Neither can turn out the other; but, if one of them should take more than his proper share, the injured party can bring an action for an account. If one of them should go so far as to oust the other, he is guilty of trespass.
Since 1925 there has been no such thing as a legal tenancy in common. All tenancies in common now are equitable only and they take effect behind a trust for sale (s36(4) of the Settled Land Act 1925). Nevertheless, until a sale takes place, these equitable tenants in common have the same right to enjoy the land as legal tenants used to have.
My conclusion, therefore, is that when there are two equitable tenants in common, then, until the place is sold, each of them is entitled concurrently with the other to the possession of the land and to the use and enjoyment of it in a proper manner and that neither of them is entitled to turn out the other.’

Judges:

Devlin J, Denning LJ

Citations:

[1955] 1 QB 234

Statutes:

Settled Land Act 1925 36(4)

Jurisdiction:

England and Wales

Cited by:

Cited – Wilkinson v Chief Adjudication Officer CA 24-Mar-2000
The claimant owned a half share in a property. It was said that this brought her disposable capital above the limit to make a claim. She had inherited it, but had transferred it to her brother in satisfaction of her mother’s wishes. . .
Cited – Hammersmith and Fulham London Borough Council v Monk HL 5-Dec-1991
One tenant of two joint tenants of a house left and was granted a new tenancy on condition that the existing one of the house, still occupied by her former partner, was determined. She gave a notice to quit as requested, the council claimed . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 23 March 2022; Ref: scu.207071

Evans v Hayward: CA 1 Jun 1992

The property had been bought in joint names at a discounted price under a ‘right to buy’ conferred by the Housing Act 1985; but where the discount was substantially attributable to the plaintiff’s former occupation as local authority tenant. The court considered the appropriate shares on which the property was to be held.
Held: Referring to Springette: ‘In Springette v Defoe the primary issue which arose for decision was whether, as the judge at first instance had held, it was permissible to reach the conclusion that the two parties were to share the beneficial interests in the property equally without regard to their contributions, on the ground that, though neither of them ever said anything about it to the other, each of them had in fact in his or her own mind an uncommunicated belief or intention that they were to share the property equally beneficially. But that view was rejected by this court.’

Judges:

Lord Justice Dillon

Citations:

[1995] 2 FLR 511

Jurisdiction:

England and Wales

Citing:

Explained – Springette v Defoe CA 1-Mar-1992
Property was purchased in joint names, but with no express declaration of the beneficial interests. The couple had lived together for a short time as joint tenants of the local authority. They were able to purchase at a substantial discount from the . .
Cited – Huntingford v Hobbs CA 1-Mar-1992
The parties lived together in a property transferred to the woman after her divorce. That house was sold and the defendant contributed the capital. There was a joint mortgage, but the plaintiff alone had an income from which to make payments. The . .

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

Trusts

Updated: 23 March 2022; Ref: scu.199949

Target Holdings Ltd v Redferns and Another: CA 24 Nov 1993

Solicitors were liable to mortgagees for mortgage monies which had been out by them paid in advance of the completion of the purchase which would allow the mortgagee’s loan to be charged. The basic liability of a trustee in breach of trust was not to pay damages, but to restore to the trust fund that which had been lost to it or to pay compensation to the beneficiary for what he had lost. If a trustee wrongly paid away trust monies to a stranger, there was an immediate loss to the trust fund and the trustee came under an immediate duty to restore the monies to the trust fund. The remedies of equity were sufficiently flexible to require the finance company to give credit for monies received on the subsequent realisation of its security, but otherwise the solicitors’ liability was to pay the whole of the monies wrongly paid away.
Peter Gibson LJ said: ‘The remedy afforded to the beneficiary by equity is compensation in the form of restitution of that which has been lost to the trust estate, not damages. ‘
Ralph Gibson LJ (dissenting) held that it was necessary for the court to examine the nature of the relationship between the parties out of which the solicitors’ equitable duty arose. If, having regard to the relationship and its purpose, the obligations of the parties, its purpose and the obligations of the parties within it, it appeared just to regard the breaches as having caused no loss, because the loss would have happened if there had been no breach, the court should so hold.

Judges:

Peter Gibson LJ

Citations:

Independent 03-Dec-1993, Times 24-Nov-1993, [1994] 1 WLR 1089

Jurisdiction:

England and Wales

Citing:

Cited – Nocton v Lord Ashburton HL 19-Jun-1914
The defendant solicitor had persuaded his client to release a charge, thus advancing the solicitor’s own subsequent charge on the same property. The action was started in the Chancery Division of the High Court. The statement of claim alleged fraud . .

Cited by:

Appeal From – Target Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .
Cited – Charter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Trusts, Equity

Updated: 11 February 2022; Ref: scu.89717

Lissimore v Downing: ChD 31 Mar 2003

The claimant asserted an estoppel in land registered in the name of the defendant.
Held: Unspecific statements made by the defendant that ‘she would never want for anything’, or that ‘he would take care of her’, or that ‘he had looked after his other girlfriends and she would not be different’ did not found a proprietary estoppel: ‘Such statements do not on their face relate to any specific property, they plainly do not amount to a representation which binds the whole of Mr Downing’s property, and they are not expressed in terms which enable any objective assessment to be made of what is being promised. In this last respect they are to be contrasted with statements made to unpaid or underpaid workers or business partners, encouraged to work on because they would be ‘treated right’, and for whom a commensurate reward could be objectively assessed.’

Judges:

Norris QC J

Citations:

[2003] EWHC B1 (Ch), [2003] 2 FLR 308, [2003] Fam Law 566

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Downing v Lissimore CA 6-Nov-2002
Application for order to reflect interest of cohabiting partner in house. . .

Cited by:

Cited – James v Thomas CA 23-Nov-2007
The claimant sought an interest in the property registered in the sole name of the respondent. The respondent had inherited a share in the property, and then bought out the interests of his siblings with support of a loan. The claimant had made no . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Lists of cited by and citing cases may be incomplete.

Trusts, Estoppel

Updated: 02 February 2022; Ref: scu.263204

Henchley and Others v Thompson: ChD 16 Feb 2017

The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an account in common form to be produced by a trustee. Although it would not be right to say that there is a presumption in favour of making an order for an account, in my judgment, the court will not decline to make an order lightly where a trustee holds or has held assets for beneficiaries of a trust. An order for accountswas granted in favour of one beneficiary, but declined for another.
The Court noted the nature of accounting by trustees: ‘ They are different to trading accounts for a business entity. In the case of the latter, the accounts, in accordance with accounting conventions, provide a balance sheet which gives a snap shot as to the asset position on a date and a trading report covering a period. Trust accounts, particularly where there are beneficiaries with interests which have not vested, must be able to show from period to period (the frequency of accounts is not fixed) how the trust assets have been dealt with, including what distributions and disposals have taken place. A beneficiary reading trust accounts must be in a position to assess whether the trust assets conform with the trust instrument, that the class of assets held is appropriate for the trust. The style of the accounts, and the level of detail provided will necessarily vary.’

Judges:

Marsh CM

Citations:

[2017] EWHC 225 (Ch)

Links:

Bailii

Statutes:

Limitation Act 1980 21(1) 23

Jurisdiction:

England and Wales

Citing:

Cited – Soar v Ashwell CA 1893
Trustees under a will had entrusted the trust fund to a solicitor for investment. The solicitor exercised all of their administrative and investment powers for them and distributed part of the fund invested to the beneficiaries under the will but . .
Cited – Campbell v Gillespie ChD 1900
Certain businesses and property were held on trusts for the benefit of the Claimant’s creditors, with the Defendant the trustee. The estate was re-conveyed to the Plaintiff and the re-conveyance contained a recital that the Plaintiff’s debts had . .
Cited – Armitage v Nurse; etc CA 19-Mar-1997
A clause in a trust deed may validly excuse trustees from personal liability for even gross negligence. The trustee was exempted from liability for loss or damage ‘unless such loss or damage shall be caused by his own actual fraud’.
Held: The . .
Cited – 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 – Libertarian Investments Ltd v Hall 6-Nov-2013
(Hong Kong) A trustee owes a duty to hold trust funds and apply them for the purposes of the trust (a stewardship or custodial duty). He is bound to answer for his stewardship when called on by the beneficiary to do so. If for any reason he . .
Cited – Re Pauling’s Settlement Trusts ChD 1962
Family money had been placed into a trust to be managed by a bank. It was said that the bank had wrongly advanced money to the daughter allowing her to fritter away large parts of the capital
Held: The bank had misunderstood the power of . .
Cited – Attorney General v Cocke ChD 1988
. .
Cited – Royal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity, Limitation

Updated: 31 January 2022; Ref: scu.575349

Dhanji and Another v Najar and Others: ChD 18 Jan 2017

Claims are for sums due under investment and loan agreements together with necessary accounts and enquiries in respect of sums found to be held on trust and any breach of trust involved and compensation for such breach of trust. Applications for orders debarring certain defendants and for relief from sanctions.

Judges:

Matthews M

Citations:

[2017] EWHC 193 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Trusts, Litigation Practice

Updated: 31 January 2022; Ref: scu.575341

Dobson v Griffey: ChD 10 May 2018

Claim for a share in the proceeds of sale of a property, based in substance upon the doctrines of constructive trust and/or proprietary estoppel, said to arise out of the conduct of the parties in an intimate personal relationship formerly subsisting between them.

Judges:

HHJ Paul Matthews

Citations:

[2018] EWHC 1117 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Trusts

Updated: 30 January 2022; Ref: scu.616139

RBC Trustees (Ci) Ltd and Others v Stubbs and Others: ChD 7 Feb 2017

Application for rectification or rescission brought by the trustees of a settlement created by the First Defendant Mrs Janatha Stubbs, as to two deeds of revocation and appointment. Each Deed effected a revocation and reappointment of the trusts on which certain shares of a trust fund were held under a settlement. It was said that the Deeds were wrong because they effect a revocation and reappointment of the trusts relating to two of the settlor’s children, whereas they were only intended to effect a rather more limited revocation of certain interests, that is the successive life interests of their then spouses.
Held: The requirements for rectification were met.

Judges:

Rose J

Citations:

[2017] EWHC 180 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Trusts, Equity

Updated: 29 January 2022; Ref: scu.573912

Celestial Church of Christ, Edward Street Parish (A Charity) v Lawson: ChD 27 Jan 2017

The church sought inter alia orders to restrain the defendant, its former pastor, from using its name and premises.

Judges:

Hodge QC

Citations:

[2017] EWHC 97 (Ch), [2017] WLR(D) 55

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Trusts, Intellectual Property

Updated: 29 January 2022; Ref: scu.573840

Midland Bank Plc v Dobson: CA 12 Jul 1985

The trial judge had been entitled to find a common intention constructive trust from evidence which he accepted that the parties treated the house as ‘our house’ and had a ‘principle of sharing everything’. Although the judge should approach such direct evidence with caution, if he does accept such evidence the necessary common intention is proved.

Citations:

[1986] 1 FLR 171

Jurisdiction:

England and Wales

Cited by:

Cited – Parris v Williams CA 23-Oct-2008
The parties had been business partners, but the business failed, and Mr Williams was made bankrupt. Mr Parris was offered a chance to purchase two apartments, and did so in his own name. Mr Williams asserted an interest, saying that it had been a . .
Cited – Lloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 28 January 2022; Ref: scu.277169

Lloyds Bank plc v Rosset: CA 13 May 1988

Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of importance in the law of registered conveyancing. Shortly stated, the point is whether, to have the protection afforded to overriding interests in respect of registered land, the wife needs to be in actual occupation of the house when the legal charge is executed as distinct from being in actual occupation by the later date on which the bank’s charge is registered in the land registry.

Purchas LJ, Mustill LJ, Nicholls LJ
[1988] EWCA Civ 11, [1989] Ch 350, [1988] 3 All ER 915
Bailii
Land Registration Act 1925 70(1)(g)
England and Wales
Citing:
Cited – National Provincial Bank Ltd v Hastings Car Mart Ltd ChD 27-Mar-1963
Cross J set out the nature of overriding interests: ‘Overriding interests are, speaking generally, matters which are not usually shown on title deeds or mentioned in abstracts of title and as to which, in consequence, it is not possible to form a . .
Cited – Weldon v Weldon (No 1) 27-Nov-1883
The duty of the Court to issue an attachment for non-obedience of a decree for restitution of conjugal rights is the same since the Divorce Acts as it was before.
It is not a sufficient compliance by a husband with a decree for restitution of . .
Cited – In re Boyle’s Claim ChD 1961
Mr. Boyle sought compensation in respect of a rectification of the register by removal from his title of land belonging to a neighbour. Since Mr. Boyle’s registered title was subject to overriding interests, he would not have been entitled to . .
Cited – National Provincial Bank Ltd v Hastings Car Mart Ltd CA 1964
The purpose and effect of section 70(1)(g) of the Land Registration Act 1925 was to make applicable to registered land the same rule as previously had been held to apply to unregistered land. (Russell LJ, Dissenting) ‘Nor should the mind be in any . .
Cited – National Provincial Bank v Ainsworth HL 13-May-1965
The respondent stayed on in the family home owned by her husband after he had left, and resisted a possession order sought by the chargee. The husband had charged the house as security for his business debts.
Lord Wilberforce described the . .
Cited – Williams and Glyn’s Bank Ltd v Boland HL 19-Jun-1980
Wife in Occupation had Overriding Interest
The wife had made a substantial financial contribution to the purchase price of the house which was registered only in her husband’s name, and charged to the bank. The bank sought possession. The wife resisted saying that she had an overriding . .
Cited – Barnhart v Greenshields PC 5-Dec-1853
Pemberton Leigh said: ‘With respect to the effect of possession merely, we take the law to be, that if there be a tenant in possession of land, a purchaser is bound by all the equities which the tenant could enforce against the vendor, and that the . .
Cited – Strand Securities Ltd v Caswell CA 2-Feb-1965
The leaving of furniture in a flat or having a key to the flat or making occasional use of it was not enough to constitute actual occupation. Where A permits B to occupy land on B’s own behalf by way of gratuitous licence, A’s capacity as licensor . .
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 – Eves v Eves CA 28-Apr-1975
The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired . .
Cited – Williams and Glyn’s Bank Ltd v Boland CA 1979
Money was raised on mortgage of registered land and paid to a single trustee holding the land on trust for sale, and it was held that the rights of beneficiaries who were in occupation and of whom no enquiries had been made were not mere minor . .
Cited – Midland Bank Plc v Dobson CA 12-Jul-1985
The trial judge had been entitled to find a common intention constructive trust from evidence which he accepted that the parties treated the house as ‘our house’ and had a ‘principle of sharing everything’. Although the judge should approach such . .
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Cited – In re Connolly Brothers Ltd (No. 2) CA 1912
A company had granted a debenture over all its assets, present and future, but wishing to acquire an additional property, it approached a third party who agreed to finance the purchase against a charge. It contracted to buy the property at pounds . .
Cited – Security Trust Co v The Royal Bank of Canada PC 1-Dec-1975
(Bahamas) A company, Fisher agreed to buy land with part of the purchase price to be paid by a fixed date and the balance secured by a mortgage to the vendor. A conveyance and a mortgage were duly executed and held in escrow pending payment of the . .
Cited – Church of England Building Society v Piskor CA 1954
A purchaser, let into possession before completion, granted weekly tenancies to Captain Hamilton and others. The plaintiff building society loaned the sum of pounds 1,600 to assist the purchaser with completion, the money being paid over on . .

Cited by:
Appeal from – 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 – 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 . .
Approved – Abbey National Building Society v Cann HL 29-Mar-1990
Registered land was bought with an advance from the plaintiff. The transfer and charge were registered one month later, but in the meantime, the buyer’s parents moved in. When the buyer defaulted, his mother resisted possession proceedings, saying . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .

Lists of cited by and citing cases may be incomplete.

Trusts, Registered Land, Equity

Updated: 27 January 2022; Ref: scu.251494

Eves v Eves: CA 28 Apr 1975

The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired in his name alone was because she was under 21 and that, but for her age, he would have had the house put into their joint names. He admitted in evidence that this was simply an ‘excuse’.
Held: A trust was established. There must be a sufficient link between the promises relied upon and the conduct which constitutes the detriment.
Lord Denning MR spoke as to Lord Diplock’s speech on resulting or constructive trusts: ‘Lord Diplock brought it into the world and we have nourished it.’

Brightman J, Lord Denning MR, Browne J
[1975] 1 WLR 1338, [1975] 3 All ER 768, [1975] EWCA Civ 3
Bailii
England and Wales
Citing:
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .

Cited by:
Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Hyett v Stanley and others CA 20-Jun-2003
The couple had lived together at the property without being married for several years. The house was held in the man’s sole name, and after his death she sought a half share in it. It was established that she had been told she should have a half . .
Cited – Wayling v Jones CA 2-Aug-1993
The plaintiff and defendant were in a homosexual relationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold . .
Cited – Grundy v Ottey CA 31-Jul-2003
The deceased left his estate within a discretionary trust. The claimant sought to assert an interest in it, claiming an estoppel and, under the 1975 Act, as his partner. They had lived together for four years. She had been dependent upon him . .
Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – Van Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Parris v Williams CA 23-Oct-2008
The parties had been business partners, but the business failed, and Mr Williams was made bankrupt. Mr Parris was offered a chance to purchase two apartments, and did so in his own name. Mr Williams asserted an interest, saying that it had been a . .
Cited – Lloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .

Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 27 January 2022; Ref: scu.193602

Grant v Edwards and Edwards: CA 24 Mar 1986

A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names was because she was involved in divorce proceedings and that, if the property were acquired jointly, this might operate to her prejudice in those proceedings. The title was in the defendants’ names with no express evidence of agreement her to have a beneficial interest. She had to establish a common intention acted upon by her, that she should have a beneficial interest. Equity would then not allow the defendant to deny that interest and would construct a trust to give effect to it. Two matters were need for a constructive trust. A common intention that each should have a beneficial interest. Without express words intention can be inferred from circumstances. The claimant has acted to his detriment on the basis of that common intention, with a sufficient link between the common intention and the conduct relied upon. This requires there to have been conduct on which the claimant could not reasonably have been expected to embark unless he was to have an interest in the property. (Browne-Wilkinson): ‘I suggest that in other cases of this kind, useful guidance may in the future be obtained from the principles underlying the law of proprietary estoppel which in my judgment are closely akin to those laid down in Gissing v Gissing [1971] A.C. 886. In both, the claimant must to the knowledge of the legal owner have acted in the belief that the claimant has or will obtain an interest in the property. In both, the claimant must have acted to his or her detriment in reliance on such belief. In both, equity acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention. The two principles have been developed separately without cross-fertilisation between them: but they rest on the same foundation and have on all other matters reached the same conclusions.’
Mustill LJ said: ‘(1) The law does not recognise a concept of family property, whereby people who live together in a settled relationship ipso facto share the rights of ownership in the assets acquired and used for the purposes of their life together. Nor does the law acknowledge that by the mere fact of doing work on the asset of one party to the relationship the other party will acquire a beneficial interest in that asset.
(2) The question whether one party to the relationship acquires rights to property the legal title to which is vested in the other party must be answered in terms of the existing law of trusts. There are no special doctrines of equity, applicable in this field alone.
(3) In a case such as the present the inquiry must proceed in two stages. First, by considering whether something happened between the parties in the nature of bargain, promise or tacit common intention, at the time of the acquisition. Second, if the answer is ‘Yes,’ by asking whether the claimant subsequently conducted herself in a manner which was (a) detrimental to herself, and (b) referable to whatever happened on acquisition. (I use the expression ‘on acquisition’ for simplicity. In fact, the event happening between the parties which, if followed by the relevant type of conduct on the part of the claimant, can lead to the creation of an interest in the claimant, may itself occur after acquisition. The beneficial interests may change in the course of the relationship.)
(4) For present purposes, the event happening on acquisition may take one of the following shapes. (a) An express bargain whereby the proprietor promises the claimant an interest in the property, in return for an explicit undertaking by the claimant to act in a certain way. (b) An express but incomplete bargain whereby the proprietor promises the claimant an interest in the property, on the basis that the claimant will do something in return. The parties do not themselves make explicit what the claimant is to do. The court therefore has to complete the bargain for them by means of implication, when it comes to decide whether the proprietor’s promise has been matched by conduct falling within whatever undertaking the claimant must be taken to have given sub silentio. (c) An explicit promise by the proprietor that the claimant will have an interest in the property, unaccompanied by any express or tacit agreement as to a quid pro quo. (d) A common intention, not made explicit, to the effect that the claimant will have an interest in the property, if she subsequently acts in a particular way.
(5) In order to decide whether the subsequent conduct of the claimant serves to complete the beneficial interest which has been explicitly or tacitly promised to her the court must decide whether the conduct is referable to the bargain, promise or intention. Whether the conduct satisfies this test will depend upon the nature of the conduct, and of the bargain, promise or intention.
(6) Thus, if the situation falls into category (a) above, the only question is whether the claimant’s conduct is of the type explicitly promised. It is immaterial whether it takes the shape of a contribution to the cost of acquiring the property, or is of a quite different character.’
Mustill LJ continued: ‘(7) The position is the same in relation to situations (b) and (d). No doubt it will often be easier in practice to infer that the quid pro quo was intended to take the shape of a financial or other contribution to the cost of acquisition or of improvement, but this need not always be so. Whatever the court decides the quid pro quo to have been, it will suffice if the claimant has furnished it.
(8) In considering whether there was a bargain or common intention, so as to bring the case within categories (b) and (d) and, if there was one, what were its terms, the court must look at the true state of affairs on acquisition. It must not impute to the parties a bargain which they never made, or a common intention which they never possessed.
(9) The conduct of the parties, and in particular of the claimant, after the acquisition may provide material from which the court can infer the existence of an explicit bargain, or a common intention, and also the terms of such a bargain or intention. Examining the subsequent conduct of the parties to see whether an inference can be made as to a bargain or intention is quite different from examining the conduct of the claimant to see whether it amounts to compliance with a bargain or intention which has been proved in some other way. (If this distinction is not observed, there is a risk of circularity. If the claimant’s conduct is too readily assumed to be explicable only by the existence of a bargain, she will always be able to say that her side of the bargain has been performed.)’

Nourse LJ, Sir Nicolas Browne-Wilkinson V-C, Mustill LJ
[1986] 1 Ch 638, [1986] 2 All ER 426, [1986] 3 WLR 114, [1986] EWCA Civ 4, [1986] Fam Law 300, [1987] 1 FLR 87
Bailii
England and Wales
Citing:
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – 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 – Crabb v Arun District Council CA 23-Jul-1975
The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
Held: His claim to have raised an equity was upheld. The plaintiff . .

Cited by:
Cited – Stoeckert v Geddes (Appeal No 66 of 1998) PC 13-Dec-1999
PC Jamaica The claimant claimed against the estate of her former partner. Though not married they had lived together for many years, and she claimed there had been an express understanding that she would receive . .
Cited – Roy Green v Vivia Green PC 20-May-2003
PC (Jamaica) The claimant sought a declaration that he was entitled to one half of the marriage assets on divorce. They had each acquired various properties and assets both in Jamaica and the USA. The judge at . .
Applied – Equity and Law Home Loans Ltd v Prestidge CA 1992
A house was bought in the name of one partner in an unmarried couple. It was subject to a mortgage, and the non-owner contributed a capital sum. The landowner later remortgaged for a larger sum, but without the partner’s consent. The landowner then . .
Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Hyett v Stanley and others CA 20-Jun-2003
The couple had lived together at the property without being married for several years. The house was held in the man’s sole name, and after his death she sought a half share in it. It was established that she had been told she should have a half . .
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Wayling v Jones CA 2-Aug-1993
The plaintiff and defendant were in a homosexual relationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold . .
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 – Stokes v Anderson CA 1991
The claimant had made two payments, amounting together to andpound;12,000, towards the acquisition of the one half share of the defendant’s ex-wife in the net equity (valued at andpound;90,000) in a house in which the claimant and the respondent . .
Cited – Springette v Defoe CA 1-Mar-1992
Property was purchased in joint names, but with no express declaration of the beneficial interests. The couple had lived together for a short time as joint tenants of the local authority. They were able to purchase at a substantial discount from the . .
Cited – Midland Bank v Cooke and Another CA 13-Jul-1995
Equal equitable interest inferrable without proof
The bank sought to enforce a charge given by the husband to secure a business loan. The property was purchased from the husband’s and his family’s resources and the loan, and was in his name. There had been no discussion or agreement between husband . .
Cited – 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 – Cobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
Cited – Strover and Another v Strover and Another ChD 10-May-2005
Insurance policies had been taken out by the partners in a firm. The surviving family of one and the remaining partners contested ownership. The policy was held in part for the benefit of the family. The premiums had been paid from partnership . .
Cited – Strover and Another v Strover and Another ChD 10-May-2005
Insurance policies had been taken out by the partners in a firm. The surviving family of one and the remaining partners contested ownership. The policy was held in part for the benefit of the family. The premiums had been paid from partnership . .
Cited – Van Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Tackaberry and Another v Hollis and others ChD 13-Nov-2007
A house had been purchased in 1982 by one member of a large family. Other family members now disputed whether the land was held in trust for them. A constructive trust was asserted.
Held: The claimants had failed to establish that a . .
Cited – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Cited – Lloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .

Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 27 January 2022; Ref: scu.182238

Magiera v Magiera: CA 15 Dec 2016

The defendant H appealed against a refusal of a stay of the action under the 1996 Act on the basis of Brussels I.
Held: The appeal failed. Article 22 was to be narrowly construed, and it should be no wider than is needed to satisfy the objective of the provisions. However, the costs order had been made beyond the court’s powers insofar as it amounted to a chrging order and was varied as required.

Black, Sales, Irwin LJJ
[2016] EWCA Civ 1292, [2017] BPIR 472, 20 ITELR 47, [2017] 3 WLR 41, [2017] WTLR 245, [2016] WLR(D) 677, [2017] Fam 327
Bailii, FLW, WLRD
Trusts of Land and Appointment of Trustees Act 1996, Council Regulation (EC) No 44/2001 on jurisdiction and the recognition of judgments in civil and commercial matters
England and Wales

Jurisdiction, European, Trusts

Updated: 27 January 2022; Ref: scu.572417

X v A and Others: ChD 13 Oct 1999

A trustee under a will where there was a life interest had the ability to assert a lien over the estate in respect of potential liability which might be incurred because of the necessity of complying with any order for the clean-up of land forming part of the estate, even though the part of the Act which might operate was not yet in force.

Gazette 13-Oct-1999
Environmental Protection Act 1990 Part II
England and Wales

Trusts, Wills and Probate, Environment

Updated: 27 January 2022; Ref: scu.90642

Nicolson (Arbuthnott’s Curator Bonis) v Arbuthnott: SCS 7 Jun 1878

An entailer, proprietor of the estates of A and B, executed a deed of entail of B, in which he set out that ‘for the more effectually preserving’ the estate of B ‘distinct from the lordship and estate of A, as a permanent property to the second son of my only son J, . . whom failing, by death or otherwise as after mentioned, to his other sons and their heirs-male in their order, subject to the provision after mentioned, ‘ he destined the estate of B to the second son of his only son and the heirs-male of his body, whom failing to each of the other younger sons of the family in their order of seniority, calling each by name, and adjecting in the case of each this condition?’who shall not have succeeded or become next in succession to the lordship of A;’ whom failing ‘to the other heirs-male of the body of the said J who shall not have succeeded or become next in succession to the lordship of A, ‘ . . ‘whom failing to my own nearest heirs-male whomsoever.’ To this last branch of the destination no condition was specially attached, but there followed the usual clauses with reference to the mode of making up titles, and c., in the event of the prohibitive condition coming into operation, and these clauses were applied to the institute and ‘the other heirs and substitutes before named and appointed, ‘ and in another case to him ‘or any of the other heirs of tailzie before specified.’
There was a further provision, applicable to all the heirs of entail, including ‘heirs whomsoever, ‘ with regard to bonds of provision to wives and children, to the effect that ‘if the granter thereof shall succeed to the lordship of A, ‘ they should ‘in that event be absolutely null and void.’
In a competition for special service to the estate of B, between a party who claimed as the eldest son of J’s eldest son, and who was actually in possession of the lordship of A, and that party’s own second son, held (1) that both must claim under the last branch of the above destination as ‘heirs-male whomsoever’ of the entailer, the previous branch having reference to J’s younger sons exclusively; and (2) that upon a construction of the intention of the testator the prohibitive condition did not apply to the last branch of the destination.

[1878] SLR 15 – 596
Bailii
Scotland

Land, Trusts

Updated: 24 January 2022; Ref: scu.577403

Breakspear and others v Ackland and Another: ChD 19 Feb 2008

Beneficiaries sought disclosure of a wishes letter provided by the settlor to the trustees in a family discretionary trust.
Held: The confidentiality in the letter was, in the absence of some express term by the settlor, in the trustees, and they were under no obligation to disclose it. Briggs J comprehensively considered the law of England on the issue of disclosure of wish letters in the context of discretionary trusts. It was best to approach requests for disclosure as calling for the exercise of a discretion, rather than adjudication upon a proprietary right. The discretion would be exercised in accordance with what was judged to be the best interests of the beneficiaries and the due administration of the trust, and on the basis of an assessment of the objective consequences of disclosure rather than by reference to the subjective purpose for which the disclosure was sought. He emphasised that disclosure should not be assumed to be automatic.[23] The exercise of discretionary dispositive powers by trustees is inherently confidential, and this confidentiality exists for the benefit of beneficiaries rather than merely for the protection of the trustees.[24] Certain documents, particularly memoranda of wishes, are brought into existence for the sole purpose of facilitating an inherently confidential process. He disagreed with the proposition that the general trend was towards disclosure, at least in relation to memoranda of wishes.

Briggs J
[2008] EWHC 220 (Ch), Times , [2009] Ch 32, [2008] 3 WLR 698, (2007-08) 10 ITELR 852, [2008] 2 All ER (Comm) 62, [2008] WTLR 777
Bailii
England and Wales
Citing:
Applied – In re Londonderry’s Settlement; Peat v Lady Walsh CA 3-Nov-1964
The Court considered limitations on the right to disclosure of trust documents, and in particuar the need to protect confidentiality in communications between trustees as to the exercise of their dispositive discretions, and in communications made . .
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 by:
Cited – Dawson-Damer and Others v Taylor Wessing Llp and Others ChD 6-Aug-2015
The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in . .

Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 22 January 2022; Ref: scu.264596

Barnsley and Others v Noble: CA 2 Aug 2016

The court was asked as to the proper interpretation of an exoneration clause contained in a will to relieve the trustees under trusts set out in the will of personal liability in respect of certain breaches of duty by them.

Sir Terence Etherton Ch, Patten, Sales LJJ
[2016] EWCA Civ 799
Bailii
England and Wales
Citing:
See Also – Barnsley and Others v Noble CA 30-Jun-2015
. .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 20 January 2022; Ref: scu.567880

Theodore Edgar v James Maxwell, Alias Johnstone: HL 1 Feb 1742

Fiar absolute and limited. – An estate being settled in a marriage contract upon the heirs male of the marriage; whom failing, upon the heirs male of the body of the husband by any other marriage; whom failing, upon the heirs female of the marriage; found that the heir male of the second marriage, who succeeded to the estate, might gratuitously dispose of it to the exclusion of the substitutes, the heirs female of the first marriage.

[1742] UKHL 1 – Paton – 334
Bailii
Scotland

Trusts

Updated: 20 January 2022; Ref: scu.556480

In re Tilley’s Will Trusts: ChD 1967

The court considered the rights of a beneficiary to participate in any profit which resulted where a trustee mixed trust money with his own money and then used it to purchase other property.

Ungoed-Thomas J
[1967] Ch 1179
England and Wales
Citing:
Explained away – In re Hallett’s Estate; Knatchbull v Hallett CA 1880
Where a trustee of a policy used money received from others to make payment of premiums on an insurance policy, they would be entitled to a lien on the policy. Where an asset was acquired exclusively with trust money, the beneficiary could either . .

Cited by:
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Cited – Foskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .

Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 20 January 2022; Ref: scu.187412

Khosrowpour v Mackay: SCS 1 Jul 2016

Extra Division, Inner House – ‘Hamid Khosrowpour (the pursuer) seeks damages from the estate of his late mother-in-law (the deceased) on the basis that she failed to honour an agreement that she would leave her house to him in her will. The pursuer offers to prove that in 1989 she agreed to do this in return for payment of andpound;8,000, which allowed her to exercise her right to purchase the house then tenanted by her from the local authority; andpound;800 being referable to legal costs, etc. ‘

Lord Malcolm
[2016] ScotCS CSIH – 50
Bailii

Scotland, Land, Trusts

Updated: 19 January 2022; Ref: scu.566806

Daniel and Others v Tee and Others: ChD 1 Jul 2016

Claim for breach of trust raising questions concerning the duties of trustees, and in particular the extent to which professional solicitor trustees, who have no personal expertise in managing investments, may be said to have acted imprudently by relying on the advice of independent financial advisers which transpires to be incorrect.

Richard Spearman QC
[2016] EWHC 1538 (Ch)
Bailii
England and Wales

Trusts

Updated: 19 January 2022; Ref: scu.566756

Target Holdings Ltd v Redferns (A Firm) and Another: HL 21 Jul 1995

The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two intermediate purchaser companies, Panther and Kohli, with Kohli then selling to Crowngate at a stated price of andpound;2,000,000. Crowngate applied to Target for a loan to fund the purchase from Kohli based on this higher sale price, supported by a valuation of the property at andpound;2m. The solicitors also acted for Target and were aware of the chain arrangement that inflated the purchase price, but did not disclose it to Target which agreed to lend andpound;1.7m on the security of the property, of which about andpound;1.5m was to fund the price payable to Kohli.
The solicitors received the andpound;1.5m on 28 June 1989. The following day they paid most of it to Panther (not Kohli) and on 30 June Panther used part of those funds to complete its purchase from Mirage at the agreed price of andpound;775,000.
Held: A solicitor, when he receives the money, does so as agent of the lending institution and holds it as bare trustee for the lending institution. Such a trustee acting in breach of trust is liable only for damages flowing from the breach itself. Trustees are not liable for a beneficiary’s loss if that loss is not a consequence of the breach. Damages payable for money paid out in breach of trust may be reduced by inevitable losses which would have run in any event.
Lord Browne-Wilkinson held the basic rule to be: ‘that a trustee in breach of trust must restore or pay to the trust estate either the assets which have been lost to the estate by reason of the breach or compensation for such loss. Courts of Equity did not award damages but, acting in personam, ordered the defaulting trustee to restore the trust estate. If specific restitution of the trust property is not possible, then the liability of the trustee is to pay sufficient compensation to the trust estate to put it back to what it would have been had the breach not been committed.’ and ‘Equitable compensation for breach of trust is designed to achieve exactly what the word compensation suggests: to make good a loss in fact suffered by the beneficiaries and which, using hindsight and common sense, can be seen to have been caused by the breach.’

Lord Browne-Wilkinson
Gazette 06-Sep-1995, Times 21-Jul-1995, Independent 10-Aug-1995, [1996] 1 AC 421, [1995] UKHL 10, [1995] 3 All ER 785
Bailii
England and Wales
Citing:
Appeal From – Target Holdings Ltd v Redferns and Another CA 24-Nov-1993
Solicitors were liable to mortgagees for mortgage monies which had been out by them paid in advance of the completion of the purchase which would allow the mortgagee’s loan to be charged. The basic liability of a trustee in breach of trust was not . .

Cited by:
Cited – Hulbert and Others v Avens and Another ChD 30-Jan-2003
The claimant sought damages for breach of trust against the defendant solicitors, who had acted as trustees under deeds of trust. They claimed for losses incurred by way of penalties for the late payment of capital gains tax. The defendants said . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Regina v Preddy; Regina v Slade; Regina v Dhillon (Conjoined Appeals) HL 10-Jul-1996
The appellants were said to have made false mortgage applications. They appealed convictions for dishonestly obtaining property by deception.
Held: A chose in action created by an electronic bank transfer was not property which was capable of . .
Cited – Don King Productions Inc v Warren and Others ChD 13-Apr-1998
Where partnership terms required benefit of all contracts to be assigned to the partnership, this included unassignable personal contracts which were to be held in trust for partnership, unless stated otherwise.
Lightman J said: ‘The existence . .
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 . .
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 . .
Cited – Harris v Kent and Another ChD 14-Mar-2007
The claimant said the defendant had failed to complete his promise to arrange for the issue of shares in a company in return for a loan. The defendant denied the contract.
Held: It had been agreed to treat the claimant as a fifty per cent . .
Cited – Lloyds TSB Bank Plc v Markandan and Uddin (A Firm) ChD 14-Oct-2010
The claimant sought damages saying that the defendant firm of solicitors had failed to deal properly with a conveyance having paid across the mortgage funds to a non-existent firm of solicitors and without obtaining the appropriate documents at all. . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors CA 8-Feb-2013
The defendant firm of solicitors had acted for the claimants under instructions to secure a first charge over the secured property. They failed to secure the discharge of the existing first charge, causing losses. AIB asserted breach of trust.
Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
See Also – Target Holdings Limited v Redferns (a Firm) Alexander Stevens and Company Limited (T/a Alexander Stevens Druce) CA 16-Oct-1998
. .
Cited – Purrunsing v A’Court and Co (A Firm) and Another ChD 14-Apr-2016
The claimant had paid money for a property, but the seller was a fraudster and no money or title was recovered. The claimant sued both his conveyancers and the solicitors who had acted for the fraudster, in each case innocently. The defendants each . .
Cited – Revenue and Customs v Joint Administrators of Lehman Brothers International (Europe) SC 13-Mar-2019
The Court was asked whether interest payable under rule 14.23(7) of the Insolvency Rules 2016 is ‘yearly interest’ within the meaning of section 874 of the Income Tax Act 2007. If so, the administrators must deduct income tax before paying interest . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Trusts, Damages

Updated: 17 January 2022; Ref: scu.89715

Mclaverty v Cassidy: LRA 21 Mar 2016

LRA Application for a Restriction – claim to a beneficial interest in Equity – extent of direct and indirect contributions to justify the claim – HELD – Sufficient evidence of direct contributions to substantiate such a claim – Sufficient evidence of common intention – Land Registry ordered to allow the application for restrictions

[2016] EWLandRA 2015 – 0420
Bailii

Registered Land, Trusts

Updated: 16 January 2022; Ref: scu.564465

Burrell and Sharman v Burrell, Shore, Tyrrell, etc: ChD 23 Feb 2005

Shares were appointed by trustees in the mistaken belief that they attracted business property relief from Inheritance tax. They sought to set aside the appointment.
Held: Mann J applied the rule in Stannard v Fisons Pensions Trust and declared invalid that part of the appointment which dealt with the shares.

The Honourable Mr Justice Mann
[2005] EWHC 245 (Ch), (2004-05) 7 ITELR 622, [2005] Pens LR 289, [2005] WTLR 313, [2005] BTC 8011, [2005] STC 569
Bailii
England and Wales
Citing:
Cited – Re Hastings-Bass; Hastings v Inland Revenue CA 14-Mar-1974
Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the . .
Cited – Stannard v Fisons Pension Trust Limited CA 1991
Fisons had sold their fertiliser division to Norsk Hydro. Acting on advice of actuaries and thinking that the fund was in deficit, the trustees made a transfer to a new fund to provide for pensions of transferring employees in accordance with a . .
Applied – Abacus Trust Company (Isle of Man) Ltd and Another v National Society for the Prevention of Cruelty to Children ChD 17-Jul-2001
The claimants were beneficiaries, trustee and protector of a trust fund. In order to mitigate Capital Gains Tax liability they sought advice, and, following that advice, entered into a deed of gift in favour of the respondent charity. The deed . .

Cited by:
Cited – Pitt and Another v Holt and Others ChD 18-Jan-2010
The deceased had created a settlement in favour of his wife. He suffered serious injury and placed the damages in trust, but in a form which created an unnecessary liability to Inheritance Tax on his death. The wife’s mental health act receiver now . .
Cited – Futter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .
Cited – Pitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .

Lists of cited by and citing cases may be incomplete.

Trusts, Inheritance Tax

Updated: 15 January 2022; Ref: scu.223296

Messrs Annand and Colquhoun, and Their Assignees, and Messrs Gibson and Balfour, Merchants, Edinburgh, and Their Trustee v Helen Chessels or Scott, and James Scott, Her Husband: HL 24 Mar 1775

Jus Mariti – Exclusion of Do.- Where a party conveyed his heritable and moveable estate to his daughter, in trust for behoof of herself and children, excluding her husband’s jus mariti in the event of his insolvency; Held that his creditors were not entitled to claim any of his moveable estate, the same being vested in the daughter; but that they were entitled to claim the rents of the heritable, and interest of the moveable estate up to the date of the husband’s insolvency, on which event his right of administration ceased, in terms of the express provision in the settlement.

[1775] UKHL 2 – Paton – 369
Bailii
Scotland

Insolvency, Trusts

Updated: 13 January 2022; Ref: scu.561831

James Cuthbert of Farnese v Anna Mackenzie or Paterson, and Richard Paterson, Her Husband, for His Interest: HL 13 Nov 1775

Deed – Tutory – Expiry of Do.- A deed contained a conveyance of subjects and effects to the wife, and a particular assignation of certain bonds therein, ‘to her, and her heirs and assignees,’ with provision, that after paying debts, the residue was to be enjoyed by the widow in liferent and child in fee, giving to the widow the power of distribution and division, and also nominating her tutrix to the children. Held, where the widow had recovered payment of one of the bonds, after the death of her husband, and after her second marriage, that she had only a liferent of the same, and that she could not recover payment, and validly discharge that bond, either in her own right, or as tutrix for her children, her office of tutrix expiring on her second marriage.

[1775] UKHL 2 – Paton – 377
Bailii
Scotland

Trusts

Updated: 13 January 2022; Ref: scu.561833

Charles Ward v Robert Hartpole: HL 1776

GH, a tenant for life in a marriage settlement, is thereby empowered to make leases for lives of lands in Ireland, at the best rent, without fine; and a power was also given, with the consent of trustees, to raise any sum of money. The trustees, in pursuance of the power, consent that G. H. should, by mortgaging all or any part of the lands, or in any other manner he should think fit, raise any sum of money not exceeding 5,000 l.

[1776] UKHL 3 – Bligh – 470, (1776) 3 Bligh 470
Bailii
Scotland

Trusts

Updated: 13 January 2022; Ref: scu.561838

Alexander Livingston, Esq v James Warrock: HL 29 Apr 1773

Entail – Jus Tertii. – In the entail of the estate of Westquarter, the question was, Whether James Livingston could sell the estate, under the following destination of the entail, ‘to and in favour of the said Countess, and James, Earl of Findlater, her husband, and longest liver of them two, for the Earl, his liferent use allenarly, and to James Livingston and the heirs male of his body, whom failing, to his heirs male whatsoever?’ James Livingston was, by express clause, prohibited from selling; and in a former appeal it was found he could not sell ( vide ante vol. II., p. 108.) This was a part of the estate which, from the state of the title, it was thought he could sell; and it having been sold, the next heir after his death brought a reduction. Held, that where the title of two parties is derived from one author, neither party can object to the right of the common author.

[1773] UKHL 6 – Paton – 790, (1773) 6 Paton 790
Bailii

Scotland, Trusts

Updated: 13 January 2022; Ref: scu.561822

Miss Anna Bruce v James Bruce Carstairs, Esq: HL 11 Jan 1773

Entail – Exercise of Power – Provision.- In an entail power was given to the heirs of entail to burden the estate with provisions to their husbands, wives, and children, ‘such as the estate could conveniently bear and allow.’ In 1748 the heir in possession burdened it with a provision of andpound;1000; and thereafter, in 1759, burdened it with a second bond of provision to the same party for andpound;1000. Held, in an action for payment of both bonds, that the heir in possession had not exceeded his powers, and that by the first bond his powers were not so exhausted as to prevent him from granting the second.

[1773] UKHL 2 – Paton – 329, (1773) 2 Paton 329
Bailii
Scotland

Trusts

Updated: 13 January 2022; Ref: scu.561813

Dr Andrew Heron v John Vining Heron: HL 31 Jan 1770

Succession – Deed – Implied Revocation.-
A father executed a settlement in form of an entail, in favour of his eldest son, and his heirs-male; whom failing, to his second son and his heirs-male, andc., but reserved power and faculty to himself to affect or burden the fee of the lands: Held that he was entitled to execute a subsequent disposition of the estate in favour of his second son, passing over the eldest son; reversing the judgment of the Court of Session.

[1770] UKHL 2 – Paton – 189, (1770) 2 Paton 189
Bailii
Scotland

Trusts

Updated: 13 January 2022; Ref: scu.561659

Sir John Douglass, Bart v Hugh Dalrymple, &C: HL 26 Jan 1770

Absolute Disposition – Trust.-
A party disponed certain lands to his agent, in order, as he stated, to qualify him to vote in the county election, but held no written obligation under his hand to redispone. Held that the absolute disposition, together with the law agent’s accounts, amounting to andpound;1400 due him, foreclosed all idea of trust, unless this were proved by writing under the trustee’s hand, in terms of the act 1696.

[1770] UKHL 2 – Paton – 187, (1770) 2 Paton 187
Bailii
Scotland

Trusts

Updated: 13 January 2022; Ref: scu.561660

Liden v Burton: CA 2 Mar 2016

Appeal against a decision deciding that a residential property was held on trust under the terms of which the first andpound;33,522 in equity is held for the respondent, Ms Liden. The judge held that Ms Liden acquired this interest as a result of a proprietary estoppel.

[2016] EWCA Civ 275
Bailii
England and Wales

Trusts

Updated: 13 January 2022; Ref: scu.561621

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.

Matthews M
[2016] EWHC 601 (Ch)
Bailii
England and Wales
Citing:
Cited – 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 . .
Cited – 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 by:
Cited – Royal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .

Lists of cited by and citing cases may be incomplete.

Trusts, Costs

Updated: 12 January 2022; Ref: scu.561519

Lady Dowager Forbes v Lord James Forbes: HL 29 Jan 1765

Reduction – Error in Essentials of Agreement – Lifkrenter’s Powers and Liabilities – Bona Fide Consumption.-
Where the husband and wife, by marriage articles, conveyed the estate to themselves, and the survivor of them, for the wife’s liferent use allenarly, reserving power to grant provision to daughters to the extent of andpound;3000, and failing the husband exercising this power to the wife: Held, (1 st,) That though the husband had granted provisions to his daughters in exercise of this faculty, to the extent only of andpound;2000, that the wife was entitled, after his death, to execute an additional bond to the extent of andpound;1000. (2 nd), That where the liferentrix had entered into agreements restricting her liferent rights, through error in essentials, that she was still entitled to claim her rights as originally settled. (3 d), That bona fide percepti et consumpti was not pleadable, and the respondent accountable, for the whole rents, feuduties, and casualties since the date when her right accrued, reversing the judgment of the Court of Session: But, (4 th), That she was liable for the interest of the heritable debts on Puttachie and Pittendriech.

[1765] UKHL 2 – Paton – 84
Bailii
Scotland

Family, Trusts

Updated: 11 January 2022; Ref: scu.560603

Davis (As Trustee In Bankruptcy of Jackson) v Jackson and Another: ChD 7 Apr 2017

W and H were at all times estranged. W bought a house, but later, in order to get a mortgage, it was put in their joint names. They later expressly declared equal interests. At no time did H either contribute to or live in the house. On H’s insolvency the claimant receiver sought a share of the house. W argued that this would amount to an unjust enrichment.
Held: ‘the effect of the express declaration of trust in the Trust Deed and the TR1 form was to vest a beneficial interest in property in Mr. Jackson. It is inherent in the nature of a proprietary interest in land that the owner of the interest can sit back and do nothing and yet still be entitled to benefit from any appreciation in the capital value of the property. Accordingly, it cannot be said that, without more, a beneficial co-owner of land who shares in the increased value of the land has thereby been unjustly enriched. The retention of such benefit would not be unjust, because it is what the owner of an interest in property is entitled to.’ and ‘the correct apportionment of the proceeds of sale of the Property would be first to split the net proceeds equally between the Trustee and Mrs. Jackson, and then to give Mrs. Jackson additional credit for one half of all the payments she has made under the mortgage(s) from the date the Property was purchased to the date upon which the Property is sold. There should be no credits in respect of other payments which Mrs. Jackson has made, and no debits in respect of her occupation of the Property.’

Snowden J
[2017] EWHC 698 (Ch), [2017] WLR(D) 264
Bailii, WLRD
England and Wales

Land, Trusts

Updated: 10 January 2022; Ref: scu.581730

Head v Gould: ChD 1898

Kekewich J said: ‘On retiring from the trust and passing on the trust estate to their successors – and this is whether they appoint those successors or merely assign the property to the nominees of those who have the power of appointment – they are acting as trustees and it is equally incumbent on them in this ultimate act of office to fulfil the duty imposed upon them as at any other time.’

Kekewich J
[1898] 2 Ch 250
England and Wales

Trusts

Updated: 09 January 2022; Ref: scu.554413