Category: Trusts

Crociani and Others v Crociani and Others: PC 26 Nov 2014

(Court of Appeal of the Bailiwick of Jersey ) ‘The principal issue on this appeal is whether proceedings (‘the Proceedings’) brought in the Royal Court of Jersey by Cristiana Crociani (‘Cristiana’) and others (‘the respondents’) against her mother Edoarda Crociani (‘Mme Crociani’) and others (‘the appellants’) should be stayed on the ground that they were brought in breach of an exclusive jurisdiction clause contained in clause 12 of a Trust Deed made on 24 December 1987 (‘the 1987 Deed’). The determination of this issue involves resolving the following disputes, namely (i) (a) whether clause 12 of the 1987 Deed (‘clause 12′) is an exclusive jurisdiction clause, and (b) if so, in the events which have happened, whether it confers exclusive jurisdiction on the courts of Mauritius in respect of the claims made in the Proceedings, and (ii) if so, whether the Proceedings should be stayed. The appellants contend that the answer to these questions is yes, and the respondents argue that it is no.’

Lord Neuberger,Lord Mance, Lord Reed, Lord Hughes, Lord Hodge
[2014] UKPC 41
Bailii, Baiii Summary
England and Wales

Jurisdiction, Trusts

Updated: 08 January 2022; Ref: scu.539286

Thomas Finden v Charles Stephens, Wm Blandy, Ann Frances Quelch, Jemima Quelch, Edward Chambers, And Eliz Eleanor, His Wife, Joshua Brown, And Sarah, His Wife, And Ann Bushnell: 11 Dec 1846

Wish and desire that a particular person should be appointed manager of the testator’s estate for all purposes for which his trustees might have occasion for a manager, considered only as opinion and advice and not as a trust. Words of recommendatory are never construed as trusts, unless the subject be certain.

[1846] EngR 1202, (1846) 1 Coop T Cott 318, (1846) 47 ER 874
Commonlii
England and Wales

Trusts, Equity

Updated: 08 January 2022; Ref: scu.303097

Cooke v Head: CA 1972

Lording Denning said: ‘whenever two parties by their joint efforts acquire property to be used for their joint benefit, the courts may impose or impute a constructive or resulting trust. The legal owner is bound to hold the proper on trust for them both. This trust does not need any writing. It can be enforced by an order for sale, but in a proper case the sale can be postponed indefinitely. It applies to husband and wife, to engaged couples, and to man and mistress, and maybe to other relationships too.’

Lord Denning MR
[1972] 2 All ER 38, [1972] 1 WLR 518
England and Wales

Trusts

Updated: 08 January 2022; Ref: scu.188814

Anne, Countess of Ruglen; and William, Earl of March v Lord Archibald Hamilton, Et Alii: HL 21 Mar 1745

Tailzie. – Condition. – Provision to Heirs and Children.-
A power being given to the heir of entail in possession to burden the lands with provisions to younger children,-how far these provisions are effectual, upon such heir denuding (in virtue of a clause to that effect) in favour of another heir of entail? Found by the Court of Session that such heir of entail was not bound to relieve the lands of the burden. Not determined in the House of Lords.
Found that it was not a fair and proper exercise of the power, whereby the provision was to be effectual only against the heir of entail on whom the estate devolved, and not on the granter and his heirs.

[1745] UKHL 1 – Paton – 381
Bailii
Scotland

Trusts

Updated: 08 January 2022; Ref: scu.557093

Watson, Trustee For Heir of Hamilton of Redhouse, and The Other Creditors v Glass, and Other Children of The Deceased etc: HL 5 Dec 1744

Tailzie – Clause, Provision to Daughters – Obligation – ‘Heirs Female.’ – An entail bound the heirs of entail ‘to pay his daughters and heirs female,’ 10,000 merks, The entailer had only one daughter, and his son, who had succeeded under the entail, having fallen into debt, his trustee objected to pay this provision, on the ground that it was conceived only in favour of such daughter as should succeed as ‘heir female’ Held her entitled to the provision, and affirmed in the House of Lords.

[1744] UKHL 6 – Paton – 681
Bailii
Scotland

Trusts, Land

Updated: 08 January 2022; Ref: scu.556822

Barnes v Phillips: CA 23 Oct 2015

Appeal against an order holding and declaring that the parties held the beneficial shares in their jointly owned property as tenants in common in shares of 85% in favour of the respondent Denise Rosamund Phillips and 15% in favour of Mr. Barnes.

Longmore, Lloyd-Jones LJJ, Hayden J
[2015] EWCA Civ 1056
Bailii
England and Wales

Trusts, Land

Updated: 08 January 2022; Ref: scu.556784

Mattingley v Bugeja: ChD 14 Dec 2021

Case about an alleged ‘secret trust’ of real property, situated in England, under a will. The question is whether the devisee under the will, the defendant, holds the deceased’s interest in the property on trust so as to give the claimant, the deceased’s daughter, a 37.5% interest in the property (or, more accurately, in the deceased’s 71% beneficial interest in it). The daughter asserts this case. The defendant, her aunt, denies it.

HH Judge Davis-White QC,
(Sitting as a Judge of the High Court)
[2021] EWHC 3353 (Ch)
Bailii
England and Wales

Trusts, Wills and Probate

Updated: 08 January 2022; Ref: scu.670673

Wilkinson And Another v Godefroy: 17 Jan 1839

The court considered a claim for the recovery of money from a stakeholder to whom it had been entrusted, in which case a demand is necessary to throw upon the depositee a duty to repay.

[1839] EngR 396, (1839) 9 Ad and E 536, (1839) 112 ER 1315
Commonlii
Cited by:
Cited – Freeman v Jeffries CExC 1868
(Court of Exchequer) The incoming tenant plaintiff had agreed to buy the outgoing tenant’s interest in a farm at a price determined by two valuers. He paid pounds 2,000 on account; the valuation took place; the plaintiff gave to the outgoing tenant . .
Cited – Fuller v Happy Shopper Markets Ltd and Another ChD 6-Mar-2001
A tenant complained to the landlord about his failure to repair. He ceased paying rent, and the landlord eventually distrained for rent by direct action.
Held: The tenant was unable to claim a legal set-off because there was no context of . .

Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 07 January 2022; Ref: scu.310928

Archibald Murray, Advocate, Et Alii, Trustees for The Creditors of William Scott Blair, of Blair v Hamilton Blair, Esq: HL 4 Apr 1739

Conjunct fee and liferent – A wife’s estate being disponed in her marriage contract ‘to the husband and wife, in conjunct fee and liferent, and to the sons of the marriage; which failing, to the heirs male of the body of her father; which failing, to the heirs female of the marriage; which failing, to the heirs male or female of her body of any other marriage; which failing, to the husband, and the heirs male of his body of any other marriage; which failing, to the wife’s heirs whatsoever;’-the fee found to be in the wife
Heir of provision – Found that the heir of the marriage may gratuitously dispose of the estate conveyed in the marriage contract.

[1739] UKHL 1 – Paton – 251, (1739) 1 Paton 251
Bailii
Scotland

Trusts

Updated: 06 January 2022; Ref: scu.554830

Elizabeth Moodie, Spinster, A Pauper v John Stewart of Burgh: HL 6 Feb 1730

Provision to heirs and children – The heir under a marriage contract may, during his father’s lifetime, renounce for himself and his successors all claims under the contract.
Idiotry – In a reduction of a deed ex capite furoris, after the death of the granter, a general allegation of idiotry not relevant.

[1730] UKHL 1 – Paton – 20, (1730) 1 Paton 20
Bailii
Scotland

Wills and Probate, Trusts

Updated: 05 January 2022; Ref: scu.554261

Archibald, Duke of Douglas v William, Lord Strathnaver: HL 25 Feb 1730

Tailzie. – Reparation – An heir of entail having made up titles in fee-simple to the entailed estate, and burdened it with debts, contrary to the provisions of the entail, which had not been recorded,-his representatives were found liable, at the instance of the next substitute, for reparation and damages, to the effect of disburdening the estate of those debts.

[1730] UKHL 1 – Paton – 32, (1730) 1 Paton 32
Bailii
Scotland

Trusts

Updated: 05 January 2022; Ref: scu.554260

David M’Culloch, of Pilton v Christian M’Culloch: HL 17 Apr 1727

Aliment by a mother to her son, if granted animo donandi or no – A father grants bond of provision to a younger son, in a certain sum, binding himself and his heirs to aliment him till 21, or to pay interest on the bond the mother marries a second husband, and in her marriage-contract stipulates a power of alimenting her son, out of her jointure from her first husband: in a process by the assignee of the younger son, against his eldest brother, for interest, as not being alimented by the father’s heirs, such interest is decreed, and the mother is found to have alimented the younger son gratis.
Litigious – The eldest son, pending this action, paid his mother’s second husband a sum for his younger brother’s aliment, but it is found that the discharge taken for that sum, being granted pendente processu, did not influence the cause.
Bond – Termly Penalty – A bond of provision by a father contains a clause of annual-rent, but no penalty on failure: in an action of damages for not punctual payment of interest, and expences thereon incurred, the defence that the bond contained no termly penalty is overruled.

[1727] UKHL Robertson – 611, (1727) Robertson 611
Bailii
Scotland

Trusts

Updated: 05 January 2022; Ref: scu.554240

Major Thomas Cochrane v Robert Lord Blantyre: HL 4 Apr 1726

Costs and Expences. –
Trust bonds granted conditionally, if the grantor should procure two commissions held by the grantee, of which he then executed resignations, are reduced upon the ground, that though the grantor held the said resignations in his hands, he did not procure the new commissions in virtue thereof, but in consequence of other means and considerations: but the Court having refused the pursuer his costs, the judgment is reversed, and it is ordered that the Court do case these costs to be taxed and ascertained and forthwith paid to the pursuer.
Appeal – The pursuer having craved that the bonds might be delivered up to him by the clerk, but the defender having stated that he meant to appeal, and the Court having ordered the bonds to remain in process, and not to be delivered up without a fresh warrant, their judgment is affirmed.

[1726] UKHL Robertson – 558, (1726) Robertson 558
Bailii
Scotland

Costs, Trusts

Updated: 05 January 2022; Ref: scu.554229

James Marquis of Clydesdale, An Infant of Tender Years, By James Duke of Hamilton and Brandon His Father v Thomas Earl of Dundonald Et E Contra: HL 2 Apr 1726

Minor – A minor, though with consent of his curators, could not gratuitously alter the settlements of his estate.
Death-bed – Neither could he gratuitously alter them on death-bed.
Tailzie – A tailzie executed in 1716, not registered in the Register of Tailzies, sustained in 1725 as a title on which to serve heir of provision.
Return – A clause of return to the grantor of a deed alter failure of heirs male, did not disable the heir in possession gratuitously to alter in favour of has daughters.
Destination simple – Nor did a simple destination to heirs male in several deeds hinder this.
Prescription. – Base Infeftment – Haereditas Facens. – A base infeftment is taken by a son on dispositions from his father in 1653 and 1656. In 1680 the father, after the son’s death, resigns these lands by a procuratory of resignation, and takes new charters from the crown, under which the lands are held till 1725, without making up titles under the son’s base infeftment. The objection of prescription is repelled. An objection that though the base infeftment contained lands in two counties it was only registered in one, is repelled. And it is found that these lands bring still in haereditate jacente of the son, a title to them could only be made up by a service to him.
Apparent Heir – One passing by an apparent heir three years in possession not liable to implement such apparent heir’s gratuitous bond of tailzie.
Construction – A deed is executed, by which the grantor obliges himself and his heirs male, and of tailzie, provision, andc. upon failure of heirs male of his own body, and heirs male of the descendants of his body, to resign the same for infeftments to his daughters and the heirs male of their bodies without division, andc.; in a competition between the heir male of the body of his eldest daughter, and a person claiming as heir male or the defendants of his body, the former is preferred.

[1726] UKHL Robertson – 564, (1726) Robertson 564
Bailii
Scotland

Trusts

Updated: 05 January 2022; Ref: scu.554228

Sir Alexander Maxwell of Monreith, Bart v Andrew Houston, Esq: HL 30 Apr 1725

Vitiation – An objection to a deed that it was erazed in substantialibus is repelled.
Vitious Intromission and Gestio pro Haerede – A person grants an entail of his estate to his son, and his heirs male whatsoever; with the burden of his debts; the son grants a back bond, in consideration of said entail to pay the father’s debts: after the death of the father and son, the daughters convey the estate real and personal of their father to a creditor, without making up titles by inventory or confirmation; and the creditor grants bond to protect them against what they had done, and from the debts of their father; the heir male of entail having got back the estate sues the said creditor for debts of the father as a vitious intrometter, in which he obtains decree; and the Court also find the moveable debts due to such intrometter to be extinguished: but their judgment is reversed 5 and the creditor is ordered to account for actual intromissions only.

[1725] UKHL Robertson – 539, (1725) Robertson 539
Bailii
Scotland

Trusts

Updated: 05 January 2022; Ref: scu.554120

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 contribution to the purchase. She now appealed a finding that no constructive trust or estoppel arose from her long occupation and contributions and statements made, saying the court had no requirement to find a specific proportion to have been agreed.
Held: The appeal failed. While the judge may have erred in not recognising that an estoppel or constructive trust may arise in circumstances where the legal owner had assured the claimant that he or she has or will obtain a beneficial interest in the property, any error had not made a difference to the decision, and the facts found supported his judgment that no sufficiently clear assertion had been made.
Sir John Chadwick said: ‘It is said that, as a matter of law, the common intention may be formed at any time before, during or after the acquisition of the property; and that the common intention may be inferred from evidence of the parties’ conduct during the whole course of their dealings in relation to the property. For my part, I would accept each of those propositions of law
More pertinently, if the circumstances so demand, a constructive trust can arise some years after the property has been acquired by, and registered in the sole name of, one party who (at the time of the acquisition) was, beyond dispute, the sole beneficial owner: Gissing v Gissing [1971] AC 886, 901D-E, Bernard v Josephs [1982] Ch 391, 404E-F. But, as those cases show, in the absence of an express post-acquisition agreement, a court will be slow to infer from conduct alone that parties intended to vary existing beneficial interests established at the time of acquisition.’

Smith, Wilson LJJ, Sir John Chadwick
[2007] EWCA Civ 1212
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 – Bernard v Josephs CA 30-Mar-1982
The court considered the division of proceeds of sale of a house bought by an unmarried couple.
Held: Where the trusts for which a property was purchased have been concluded, the house should be sold.
Griffiths LJ said: ‘the fact that . .
Cited – 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 . .
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 – 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 by:
Cited – Hopton v Miller ChD 31-Aug-2010
The parties had entered into partnership to open and run a restaurant, but without a formal agreement. They differed as to the values contributed by their respective efforts. After failures to disclose materials requested, the defendant we precluded . .
Cited – Williams v Lawrence and Another ChD 28-Jul-2011
The claimant, as trustee for the deceased’s insolvent estate, sought a declaration that a transfer of the deceased’s share in property made by the executors was void as being at an undervalue. The property was subject to a right of occupation in . .

Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 05 January 2022; Ref: scu.261561

James Hamilton of Dalzell, Esq; Ex Parte v James Hamilton Brother To William Hamilton, of Orbiestoun, Deceased, and The Creditors of The Said William Hamilton, and James His Son: HL 18 Apr 1724

Service of heirs – An estate being disponed to a father and sailing him to his eldest son, and the heirs male of his body, with other subsitutions; and the eldest son having survived the father was infeft thereon, and died afterwards without serving heir to him: the Court found the right to the estate not fully vested in the son without a service, but the judgment is reversed upon appeal.
Death-bed – The Court having found that death-bed could be pleaded by an heir cut off by two prior deeds, and by creditors, the judgment is reversed.
Did, contracting the sickness at the time of executing the deed, constitute death-beds?
Fiar absolute limited – A father grants an absolute dispsition to his son, which is not completed by infeftment or by making up schedules in term, thereof the son afterwards joins with the father in making two new settlements of the estate, and the father who still continued in possession grants and position to a third party, after the son’s death; the Court having found these posterior dispositions were not of prejudice to the son’s creditors, the judgment is reversed.

[1724] UKHL Robertson – 493, (1724) Robertson 493
Bailii

Scotland, Trusts

Updated: 05 January 2022; Ref: scu.553904

John Arratt, Esq v John Wilson of Baikie: HL 21 Feb 1722

Appeal – In an action of declarator of trust an interlocutor is pronounced, holding a defender as confessed upon an account of charge and discharge, given in by the pursuer, and he is ordered to denude. Afterwards upon the defender’s application, the Court allowed him ten days longer to give in his accounts, but before the expiration of these ten days, he brings his appeal against certain interlocutors, and amongst others, against the interlocutors holding him as confest; all which are specially affirmed by the House of Peers. After the determination of the first appeal, the defender applied to the Court to have liberty to give in his accounts in ten days, as allowed by the interlocutor before the appeal: but it was found that his right was extinguished, and that he must denude in terms of the decree affirmed by the House of Lords.

[1722] UKHL Robertson – 409, (1722) Robertson 409
Bailii

Scotland, Trusts

Updated: 05 January 2022; Ref: scu.553736

Alexander Lord Saltoun v William Fraser Esq; His Brother, Guardian and Trustee for Alexander Fraser: HL 16 Jun 1720

Parent and Child – Tutor and Pupil – Lord Saltoun having left 4000 l. payable at the first term after his decease, to the eldest son of the master of Saltoun, and failing him to the grantor’s heirs of entail; and having appointed an uncle of the pupil to be his tutor and curator with a salary during nonage with power to uplift the principal and interest, to employ the money in the purchase of lands, andc.: the pupil’s father, the heir and executor of the grantor of the provision, was not obliged to pay over the money to the uncle without security, but to pay it to the Court of Session, who were ordered to by it out in the manner directed by the grant.

[1720] UKHL Robertson – 312, (1720) Robertson 312
Bailii

Scotland, Trusts

Updated: 05 January 2022; Ref: scu.553647

John Campbell, of Calder, Esq v Ruth Pollock, Alias Campbell: HL 7 Jun 1720

Personal and transmissible – A sum appointed by a father to be paid to a son, his heirs, executors, or assignees, at a day certain, was transmissible by the son, though he died before that day.
Pactum Illicitum – An estate is fetded by a father upon his son and his heirs, reserving a life-rent to a certain amount, and by the son’s marriage contract the estate is declared to be of a certain annual value: two years after the marriage the son by a deed declares that the estate was not worth so much per annum, but that this was done to please the wife’s friends, and he grants bond to pay or allow the father to charge a sum upon the estate for provisions to his younger brothers and fitters, which should be in full of legitim: this was not contra fidem tabularum nuptialium.
Implied Discharge – After granting this bond, the fiar made a new disposition of the estate to the son, in same terms with the marriage-contract; but this was not a discharge of the bond, allowing the father to charge the estate with childrens’ provision
Fiar absolute limited – In a son’s marriage-contract it is covenanted, on the part of his father that lanas and hereditaments of a certain annual value were to be fettled and assured so as that the same should come to and be vested in the eldest son of the marriage, and other lands and hereditaments to remain to the son’s use, reserving the father’s life-rent of part: the son was fiar, and by his bond bound the heirs of the marriage.

[1720] UKHL Robertson – 324, (1720) Robertson 324
Bailii
Scotland

Trusts, Wills and Probate

Updated: 05 January 2022; Ref: scu.553650

The Commissioners and Trustees of The Forfeited States v Kenneth Mackenzie of Assint, A Minor, By Colonel Alexander Mackenzie, His Curator: HL 10 Feb 1720

Papist attainted of Treason – The Act 5 Geo. 1 c. 22. having limited a certain time for preferring exception, against a forfeiture, a person who presented his exceptions as protestant heir of a trustee could not, after expiration of the time limited reply as protestant heir of those for whom the trust was created.
Trust Estate held for a Papist – An estate held in trust for the Earl of Seaforth, a papist, was forfeited to the public by his attainder, and could not be cases up, by the protestant heir.

[1720] UKHL Robertson – 263, (1720) Robertson 263
Bailii

Scotland, Trusts

Updated: 05 January 2022; Ref: scu.553638

William Morison, of Preston Grange, Esq; v Sir William Scott of Thirlestayn, William Nisbet of Dirleton, and John Scott of Harden, A Minor, By His Guardian: HL 19 Feb 1720

Husband and Wife – A bond, with a clause of annualrent is granted blank in the creditor’s name, but delivered to a wife, during the subsistence of her marriage: the husband entails his real estate on the grantor of the bond, and also conveys to him all his personal estate, but was not privy to said bond; in a competition between the executor of the husband, and the executor of the wife, the husband’s executor is preferred to said bond: and the wife’s executor is ordered to refund what had been paid to her, in her widowhood.
General Disposition – A general disposition of a man’s personal estate, made in favour of one who had, without the husband’s knowledge, granted a bond to the wife did not release this bond.

[1720] UKHL Robertson – 269, (1720) Robertson 269
Bailii
Scotland

Family, Trusts

Updated: 05 January 2022; Ref: scu.553641

John Arratt Late Professor of Philosophy At St Andrews v John Wilson: HL 23 Mar 1719

Trust – Circumstances inferring the trust of a disposition, bearing to be heritable and irredeemable, and upon which infeftment had followed.
The trust being declared, the trustee is ordered to continue in possession, until it be redeemed, or proved that he was paid.
After several interlocutors, holding the appellant as confessed for not deponing, the appeal is brought that he might be reponed to his oath, but the interlocutors are affirmed.
Vis et metus – During the dependance of this process, the trustee having arrested the grantor of the disposition upon one of the debts paid by and assigned to such trustee, and while under caption having taken from the grantor a discharge and renunciation of all trust, and a disclaimer of his action of reduction: this discharge reduced upon the head of vis et metus; and the trustee is ordered to pay 60 l. Scots of expences, before he should be heard in the principal cause.

[1719] UKHL Robertson – 234, (1719) Robertson 234
Bailii
Scotland

Trusts

Updated: 04 January 2022; Ref: scu.553532

William Ayton Esq v Dame Margaret Colvill, Widow of Sir John Ayton of Ayton, and Robert and Andrew Ayton Their Sons: HL 23 Feb 1719

Representation – An eldest son of a marriage is retoured legitimus et propinquior baeres to his father cum beneficio inventarii. In the inventory he gives up not only the lands settled upon him in his mother’s contract of marriage, but also certain other lands; and afterwards brings a reduction of the provisions in a second contract of marriage, alleging, that he was only heir of provision in virtue of his mother’s contract of marriage, and as such might still quarrel his father’s deeds, the narrative of the retour designing him heir procreated between a certain man and woman; it is found, that he was served heir of lint to his father, and as such could not quarrel any of his father’s deeds.

[1719] UKHL Robertson – 221, (1719) Robertson 221
Bailii
Scotland

Trusts

Updated: 04 January 2022; Ref: scu.553531

George Hamilton, An Infant, and William Hamilton of Grange, His Father, Tutor and Administrator In Law v Captain George Boswell, Brother To David Boswell of Balmutto Deceased: HL 10 Feb 1718

Representation – A disposition is made by a person to one of his daughters, and the heirs of her body, whom failing to-, his heirs and assignees: upon this disposition the daughter is infeft, and dying without issue, her sister is served tanquam legitima et propinquior haeres to the father and her: it is found that the service ought to have been as heir of provision.
Curtesy – An heiress’s infeftment, reduced after her death for informality, but not quarrelled in her lifetime, is sufficient to support the curtesy.

[1718] UKHL Robertson – 192, (1718) Robertson 192
Bailii
Scotland

Trusts

Updated: 04 January 2022; Ref: scu.553506

Robert Middleton, Rector of St Mary’s In Colchester v Lieutenant-Colonel John Balfour: HL 2 Sep 1715

Heritable and Moveable – A father in 1641, upon his eldest son’s marriage, settled an estate upon him and the heirs thereof, reserving a power to burden: the son was infeft, and half the marriage portion paid to the father; but the wife dying without issue, within year and day, the father granted a bond to the son to employ same for his benefit, or to restrict his power of burdening pro tanto; the eldest son also dying, the father settled the estate upon the second son who, after the father’s death, granted heritable securities with infeftment to creditors thereon in 1666, upon which apprisings were led in 1670. His son having taken up the succession as heir to his uncle, instead of his father (the second son); at the instance of creditors, the contract of marriage and infeftment were reduced by the Court of Session, but with a clause, that the half of the marriage-portion which has been paid should be a real burden upon the estate: this half was afterwards confirmed by the executor and adjudication taken in 1680. In a competition between the person having right to the heritable bonds and infeftments in 1666, with apprisings thereon in 1670, and the person having right to the half of the marriage-portion, the Court having preferred the latter, the judgment is reversed.

[1715] UKHL Robertson – 167, (1715) Robertson 167
Bailii

Scotland, Trusts

Updated: 04 January 2022; Ref: scu.553491

James Don Esq; v Sir Alexander Don of Newton: HL 14 Jul 1713

An estate is entailed by a person to himself in liferent and to his eldest son and the heirs male of his body whom failing to the entailer himself, whom failing to his second and third sons, and the heirs male of their bodies andc. whom all failing to the father’s nearest heirs and assignees: another estate is entailed to the second son of the former entailer and the heirs male and female of his body, whom failing to the said former entailer and his heirs male of tailzie and provision in the former entail; after failure of the institute in the second entail and the heirs male and female of his body, the heir male of the first entailer succeeds to the estate contained in the second entail.
Tailzie
An heir of entail prohibited from alienating gratuitously, where the prohibitory, irritant, and resolutive clauses, were referred to as contained in another entail.
At making an entail the institute reconveys to his father an estate formerly settled upon him, and he and his wife discharge an obligation upon the father by their contract of marriage; the institute, nevertheless, cannot gratuitously alter.

[1713] UKHL Robertson – 76, (1713) Robertson 76
Bailii

Land, Trusts, Scotland

Updated: 04 January 2022; Ref: scu.553468

Sir Patrick Home, Baronet v Sir Robert Home, Baronet Et E Contra: HL 27 Jun 1712

Circumstances sufficient to reduce deeds upon this ground. Being so reduced they stand as a security only or the onerous causes thereof.
By marriage contract the husband is bound to resign the estate to himself, and the heirs male of the marriage, and inhibition being used thereon he was disabled to dispose of that estate gratuitously, in prejudice of the heir male of the marriage.
This heir male being served Haeres masculus et provisionis to his father is found liable by the Court to warrant his father’s deeds, but the judgment is reversed.
A second Son having accepted from his Father a tack of the estate for payment of debts and having afterwards taken a disposition of that estate from his elder brother, the trustee is obliged to count and clear the onerous cause of this disposition, at the suit of the son of the said elder brother, (whom the Court had found to be beir-male.)

[1712] UKHL Robertson – 47, (1712) Robertson 47
Bailii

Scotland, Trusts

Updated: 04 January 2022; Ref: scu.553461

John Crawfurd, An Infant, By Jane His Mother and Guardian v Archibald Crawfurd Esq: HL 5 Apr 1712

Minor non tenetur placitare – The maxim does not take place in a reduction upon the head of dole, or fraud in the minor’s father.
Proof. – A deed found proved to be fraudulently altered upon ocular inspection of the different pieces, and a letter from one of the perpetrators of the fraud.

[1712] UKHL Robertson – 28, (1712) Robertson 28
Bailii

Scotland, Trusts, Torts – Other

Updated: 04 January 2022; Ref: scu.553457

Alexander Robertson Esq of Strowan v Margaret Robertson, His Sister: HL 4 Jun 1712

A mother being put in possession of part of her eldest Son’s forfeited estate for aliment to younger children, in a question with the Son after the estate restored, it is found that her intromissions, above the current interest of their portions, went in discharge of former interest due thereon and of current interest, but not in payment of principal, or of interest after the intromissions ceased.
Circumstances inferring this crime: though decree taken in the civil action, recourse might also be had to the penal: the pains of battery not remitted by an act of general indemnity.

[1712] UKHL Robertson – 55, (1712) Robertson 55
Bailii

Scotland, Trusts, Children

Updated: 04 January 2022; Ref: scu.553460

Sir James Sinclair of Dunbeath, Bart v John Sinclair of Ulbster, Esq: HL 2 Jun 1713

Provisions to Children. – A portion being left to a daughter; with a proviso, that she should not dispose of or incumber the same, or interest thereof, till the times of payment should be elapsed; the might, nevertheless, make an alignment thereof, in trust for herself, to have an action carried on to recover the interest.
Appeal brought for delay. – In this case the respondent found entitled to such interest, as he might have entitled himself to by registering the horning, had he not been restrained by the appeal.

[1713] UKHL Robertson – 59, (1713) Robertson 59
Bailii

Scotland, Trusts

Updated: 04 January 2022; Ref: scu.553465

Bagum v Hafiz and Another: CA 22 Jul 2015

The land owner appealed from an order of the court as to land held under a co-ownership arrangement between three people. The order was for the sale of the property with the first option being given for the purchase of the property. It was said that the court had no jurisdiction to make such an order under the 1996 Act.
Held: The judge had been correct to make the order and it was within the wide discretion given by the Act.

Lord Dyson MR, Briggs, Bean LJJ
[2015] EWCA Civ 801, [2015] WLR(D) 329, [2015] 3 WLR 1495, [2016] Ch 241, [2015] Fam Law 1192, [2015] CP Rep 44, [2015] WTLR 1303
Bailii, WLRD
Trusts of Land and Appointment of Trustees Act 1996
England and Wales

Trusts, Land

Updated: 02 January 2022; Ref: scu.550492

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.

Morgan J
[2015] EWHC 1742 (Ch)
Bailii
England and Wales
Cited by:
Cited – Ong and Others v Ping CA 12-Dec-2017
. .

Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 02 January 2022; Ref: scu.550033

Kinch and Another v Bullard and Others: ChD 16 Sep 1998

A notice of severance of a joint tenancy applied to sever the tenancy even though it had not actually been received. It was sufficient that it had been posted and received at the house though intercepted.

Times 16-Sep-1998, [1999] 1 WLR 423
Law of Property Act 1925 36(2)
England and Wales
Cited by:
Cited – UKI (Kingsway) Ltd v Westminster City Council SC 17-Dec-2018
Short issue as to the requirements for valid ‘service’ of a completion notice so as to bring a newly completed building within liability for non-domestic rates. The notice had been served by email where no statutory authority existed for this.
Trusts

Updated: 31 December 2021; Ref: scu.82781

Swampillai v Joseph: CA 19 Feb 2015

Renewed application for permission to appeal against an order declaring that the defendant held a property in Greenford for himself and the claimant as tenants in common in equal shares; and that the defendant had no beneficial interest in another property registered in her name.

Briggs J
[2015] EWCA Civ 261
Bailii
England and Wales

Trusts, Land

Updated: 29 December 2021; Ref: scu.544903

Dorothy Roulstone v O L Panton (Administrator of the Estate of Olive Hinds): PC 27 Jul 1979

Cayman Islands – The Board was asked whether the beneficial interests in certain parcels of land conveyed to the appellant and another jintly on purchases were those of joint tenants so that ion the death of the co-owner intestate, the appellant became owner vy survivorship of the sole legal and beneficial interests. Ther was no suggestion of any severance.

[1979] UKPC 36, [1979] 1 WLR 1465
Bailii

Commonwealth, Land, Trusts

Updated: 29 December 2021; Ref: scu.544923

Sir Andrew Kennedy, Baronet v Sir Alexander Cuming, Baronet: HL 19 Apr 1711

The office of conservator, held by a grant under the great seal to a father and his son jointly, being upon complaint of the father’s malversations granted to a third person, without previous sentence; this new grant was void.
Certain malversations alleged against the conservator not relevant to infer deprivation.
The malversations of a conservator being found proved per singulares testes, the judgment is reversed.

[1711] UKHL Robertson – 19, (1711) Robertson 19
Bailii
Scotland

Trusts

Updated: 28 December 2021; Ref: scu.553455

Re EG: CoP 11 Feb 2015

Application by the Public Guardian to revoke a Lasting Power of Attorney for property and financial affairs (‘LPA’) because the attorneys have behaved in a way that contravenes their authority and is not in the donor’s best interests.

Lush SJ
[2015] EWCOP 6
Bailii

Agency, Trusts

Updated: 27 December 2021; Ref: scu.542478

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 needed to be dated in the new tax year, but was dated for the previous year. They sought a declaration that the deed was void ab initio, the directors having failed to address a relevant consideration.
Held: The declaration was granted. The matters which could, if present, be taken into account, can include factors which might vitiate the intended legal effect of the deed, including the fiscal effect. It was unrealistic to divorce the several steps from each other. Trustees must consider the fiscal consequences of their acts, and a failure to do so was capable of leading to the application of ‘the Rule in Hastings-Bass’.

Potter J
Gazette 13-Sep-2001, Times 25-Sep-2001, [2001] EWHC B2 (Ch), [2001] STI 1225, [2001] STC 1344, [2001] WTLR 953, [2002] BTC 178, (2000-01) 3 ITELR 846
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 . .
applied – Green v Cobham ChD 19-Jan-2000
cw The Trustees had overlooked the fact that a Will Trust and two sub-settlements together constituted a single composite settlement for the purposes of CGT with a single body of trustees. As a result of his . .

Cited by:
Applied – Burrell and Sharman v Burrell, Shore, Tyrrell, etc ChD 23-Feb-2005
burrell_burrellChD05
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 . .
Cited – Futter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .

Lists of cited by and citing cases may be incomplete.

Trusts, Capital Gains Tax

Updated: 23 December 2021; Ref: scu.163314

Marquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton etc: 8 Aug 1820

[1820] EngR 550, (1820) 2 Jac and W 1, (1820) 37 ER 527
Commonlii
England and Wales
Citing:
See Also – Earl Cholmondeley v Lord Clinton 1789
A solicitor even though he may not be continuing to act for a particular client, must never be permitted to disclose, to the injury of that client, matters of which he had learned whilst so employed. . .
See Also – The Earl of Cholmondeley v Lord Clinton 17-Jul-1813
. .
See Also – Earl Cholmondeley And Ann Seymour Damer v Lord Clinton And Others 16-Jan-1815
A solicitor for one of the parties in a suit cannot become the solicitor for the opposite party, though he is separated from the partnership which jointly were so employed on the other side, and the remaining partner still continues so employed, and . .
See Also – Earl Cholmondeley v Lord Clinton 3-Feb-1815
An Attorney or solicitor cannot give up his client, and act for the opposite party, in any suit between them. . .
See Also – Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton 18-Dec-1816
. .
See Also – Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton, Sir Lawrence Palk, And Others 24-Dec-1816
. .
See Also – Marquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton, Francis Drake, Ambrose St John, John Inglett Fortescue, Sir Lawrence Palk (Deceased), William Seymour, And Others 28-Jun-1817
. .
See Also – The Marquis of Cholmondeley v Lord Clinton 1819
Where A, in a conveyance to uses, settled an estate for life on himself, remainder in tail to his issue, with an ultimate limitation to the heirs of SR in fee; and at the time of the settlement A was himself the right heir of SR.
Held: that . .

Cited by:
See Also – Marquis of Cholmondeley v Lord Clinton HL 15-Jun-1821
Equity follows the law . .

Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 23 December 2021; Ref: scu.330802

Bath and North East Somerset Council v HM Attorney General, The Treasury Solicitor (Bona Vacantia): ChD 31 Jul 2002

Land was conveyed to the Council’s predecessor on condition that it be left available for use for sports and similar recreations, and left as an open space. It was now sought to develop the land as a home for a football club. The Council sought determination of whether the trusts were charitable, or whether it held the land under the 1937 or 1976 Acts; if the words ‘upon trust’ could be read to be a mere reference to a statutory purpose.
Held: The fact that the trusts might fail as charitable trusts and that the council’s money would be spent in pursuing them did not mean, of themselves, that the trust created was a reference to the council’s statutory powers. The word ‘trusts’ can have wide uses, but in a conveyance, it has a technical meaning. The trusts were not restrictive as to who should benefit. The fact that members of various clubs might be the ones to take benefit did not prevent the trust being for the benefit of the public, though gifts for the promotion of sporting interests were not generally charitable. This particular trust was charitable. The Council could accept the land on charitable trusts.

The Honourable Mr Justice Hart
[2002] EWCA 1623 (Ch)
Bailii
Physical Training and Recreation Act 1937 4, Local Government (Miscellaneous Provisions) Act 1976 19
England and Wales
Citing:
Cited – Richmond on Thames London Borough Council v Attorney-General 1982
. .
Cited – Liverpool City Council v Attorney General 15-May-1992
Land had been given to the local authority ‘for use as a recreation ground and for no other purpose’ The Attorney-General sought to oblige the authority to maintain it as such.
Held: The form of gift was not charitable, and no obligation to . .
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
Cited – Dunne v Byrne PC 22-Feb-1912
Will – Construction – Charitable Bequest – Fund to be expended for the Good of
Religion – Religious Purposes.
Held, that a residuary bequest ‘to the Roman Catholic Archbishop of Brisbane and his successors to be used and expended wholly . .
Cited – Monds v Stackhouse 1948
(High Court of Australia) A gift of money was made to the Corporation of a city to provide the nucleus of a fund to provide ‘a suitable hall or theatre for the holding of concerts to provide music for the citizens of the City and for the production . .
Cited – Regina v Somerset County Council Ex Parte Fewings and Others CA 22-Mar-1995
The local authority had accepted the argument that stag hunting was cruel and had banned it from the land it owned in the Quantocks. The ban was challenged.
Held: The ban was unlawful. The decision had been reached on moral, and not on . .

Cited by:
Cited – Bath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land, Charity, Trusts

Updated: 22 December 2021; Ref: scu.174432

Zarbafi v Zarbafi and Others: CA 2 Oct 2014

The defendant appealed against orders which granted declarations by way of summary judgment in favour of the claimants in relation to the beneficial ownership of freehold and leasehold property in England, and secondly injunctions originally obtained by the claimants without notice, designed to regulate the defendant’s conduct pending the submission to the court on a future application of proposals for the disposal of one of those properties.
He submitted that the issues as to the beneficial ownership of the properties were unsuitable for summary judgment rather than a full trial, and that the judge’s decision to continue the injunctions was vitiated both by inappropriate findings that the defendant was dishonest in his dealings with the claimants, which ought not to have been made before a full trial, and because of the absence of any prior threat by the defendant to do the acts prohibited by the injunctions.
Held: The appeal was allowed and the matter sent for trial.

Rimer, Briggs, Floyd LJJ
[2014] EWCA Civ 1267
Bailii
England and Wales

Land, Trusts

Updated: 21 December 2021; Ref: scu.537240

Multinational Gas and Petrochemical Co Ltd v Multinational Gas and Petrochemical Services Ltd: CA 1983

The court considered the way that the duty of a director to his company arose: ‘The directors indeed stand in a fiduciary relationship to the company, as they are appointed to manage the affairs of the company and they owe fiduciary duties to the company though not to the creditors, present or future, or to individual shareholders.’ The sole shareholder or the whole body of shareholders may approve a foolish or negligent decision in the ordinary course of business, at least where the company is solvent.

Dillon LJ
[1983] Ch 258
England and Wales
Cited by:
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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Company, Trusts

Updated: 20 December 2021; Ref: scu.230278

Heywood v Heywood: 19 Nov 1860

[1860] EngR 1155, (1860) 29 Beav 9, (1860) 54 ER 527
Commonlii
England and Wales
Citing:
Cited – Tulk v Moxhay 22-Dec-1848
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .

Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 18 December 2021; Ref: scu.285994

Rochefoucald v Boustead: CA 12 Dec 1896

A property was purchased by the defendant which the court found to have been on the basis as trustee for the plaintiff. The defendant resisted the plaintiff’s claim on the ground of, inter alia, absence of writing.
Held: This defence was rejected. Though imperfectly recorded, a constructive trust was created. The 1677 Statute cannot be used itself as an instrument of fraud.
Lindley LJ said that it is a fraud for a person to whom land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land as her own, and: ‘It is further established by a series of cases, the propriety of which cannot now be questioned, that the Statute of Frauds does not prevent the proof of a fraud; and that it is a fraud on the part of a person to whom land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land himself. Consequently, notwithstanding the statute, it is competent for a person claiming land conveyed to another to prove by parol evidence that it was so conveyed upon trust for the claimant, and that the grantee, knowing the facts, is denying the trust and relying upon the form of conveyance and the statute, in order to keep the land himself.’

Lindley LJ
[1897] 1 Ch 196, [1896] UKLawRpCh 180, 13 TLR 118, 75 LT 502
Statute of Frauds 1677
England and Wales
Citing:
See Also – Rochefoucald v Boustead 1896
Two parties were engaged in a joint venture. The first invited the second to consult his solicitor but, in proceedings against both parties, waived any privilege in respect of what took place.
Held: The second party remained entitled to insist . .

Cited by:
Cited – 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.

Trusts

Updated: 18 December 2021; Ref: scu.223734

Burrell v Burrell’s Trustees: SCS 1915

The Court of Session considered the applicability of the rule against self dealing as it applied to the wives of trustees. The wives in question were wealthy members of the Burrell shipping family who in each case were ‘capable business women accustomed to manage their own ample means’, who bought shares from the family trust of which their husbands were trustees, out of their own means and on their own initiative. Only if the strict rule applied, would the court set aside the purchase.
Held: Neither authority nor principle required the rule’s strict application. Lord Mackenzie ‘The category under which it apparently falls is the category which is referred to by Lord Justice Cottenham in Ferraby v Hodson in terms to which every Court must subscribe: ‘Trustees expose themselves to great peril in allowing their own relatives to intervene in any matter connected with the execution of the trust; for the suspicion which that circumstance is calculated to excite, where there is any other fact to confirm it, is one which it would require a very strong case to remove.’ Therefore I venture to remark that in all cases of this class the Court will seek to be certain, by vigilant scrutiny, of the true nature of such a transaction; because one can readily see that the close relationship between husband and wife may, unless the nature of the transaction is explained, give rise to the not unnatural inference that the husband was truly the party intervening in the case, and that not without benefit to himself.’

Lord Dundas, Lord Mackenzie
[1915] SC 333
Scotland
Cited by:
Cited – In re Douglas 1928
(New South Wales) The court considered the application of the rule against self dealing as it applied to trustees’ wives: ‘the Court of Equity would presume that the contract was for the benefit of the trustee, and evidence would be required to . .
Cited – Tanti v Carlson 1948
(Victoria – Australia) The court considered the application of the rule against self dealing for trustees as it applied to wives: ‘The matrimonial relationship then becomes merely a ground of suspicion, and it becomes necessary to consider whether . .
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 . .

Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 December 2021; Ref: scu.220733

In re Douglas: 1928

(New South Wales) The court considered the application of the rule against self dealing as it applied to trustees’ wives: ‘the Court of Equity would presume that the contract was for the benefit of the trustee, and evidence would be required to displace this presumption.’

[1928] 29 SR (NSW) 48
Citing:
Cited – Burrell v Burrell’s Trustees SCS 1915
The Court of Session considered the applicability of the rule against self dealing as it applied to the wives of trustees. The wives in question were wealthy members of the Burrell shipping family who in each case were ‘capable business women . .

Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts

Updated: 18 December 2021; Ref: scu.220736

Re Hadden: ChD 1931

A trust of land for its use for the purposes of public recreation such as playing fields, parks, and gymnasiums, is charitable. Clauson J construed the late Mr Hadden’s will as establishing a trust for the supply of healthy recreation carried on mainly or chiefly in the open air and, in particular, by means of the provision of playing fields, parks and gymnasiums. As the trust was to be permanent, it had to be a charitable trust if it were to avoid offending the rule against perpetuities
Clauson J distinguished Nottage saying: ‘ . . I am of the opinion that the fact that the provision of prizes and like means for the mere encouragement of sport has been held not to be a charitable purpose (see In re Nottage …) offers no obstacle in the way of my conclusion. I see no trace in the present will of a desire to encourage mere sport; the health and welfare of the working classes is obviously the dominant object in the testator’s mind. Nor can I see that any difficulty arises from the fact that the testator contemplates that the beneficiaries should be working people, that is to say, using the term in the popular though inaccurate sense, members of a social class who are not likely to have satisfactory facilities for similar recreation within the cartilage of their own houses. It is surely far too late in the day to suggest that, in so far as it may be necessary that the element of public benefit should be inherent in the trust if it is to be held charitable, that element is not secured by the direction that working people generally are to be beneficiaries.’
‘… I ought to add that I am of the opinion that the fact that the provision of prizes and like means for the mere encouragement of sport has been held not to be a charitable purpose (see Re Nottage) offers no obstacle in the way of my conclusion. I see no trace in the present will of a desire to encourage mere sport; the health and welfare of the working classes is obviously the dominant object in the testator’s mind.’
Clauson J went on to conclude that the working classes were a sufficient section of the public to meet the public benefit test, to which further reference is made below. It was the ‘health and welfare of the working classes’ that was the relevant object of the trust. That approach, so far as playing polo is concerned, would not assist the saving of the trust in this case.

Clauson J
[1932] 1 Ch 133, [1931] All ER 539
Mortmain and Charitable Users Act 1888
England and Wales
Citing:
Distinguished – Re Nottage CA 12-Jul-1895
A testator bequeathed a fund in trust to provide annually for ever a cup to be given to the most successful yacht of the season, stating that his object in giving the cup was to encourage the sport of yacht-racing.
Held: (affirming the . .

Cited by:
Cited – Hitchin Cow Commoners Trust, Re ChD 5-Dec-2001
Land was registered as a common. Rights had been created over the land under the 1882 Act after the Inclosure Acts. Were these rights in the nature of charitable trusts? No use of the land as a cow common had taken place with living memory, and most . .

Lists of cited by and citing cases may be incomplete.

Charity, Trusts

Updated: 18 December 2021; Ref: scu.182829

De Wind v Wedge: ChD 19 Mar 2008

Brother and sister contested the devolution of their mother’s house. The sister had fallen into debt and been given much financial assistance by other members of the family. The brother said that to rebalance that, the mother had given the house to him. The sister claimed undue influence.

Patten J
[2008] EWHC 514 (Ch)
Bailii
England and Wales
Citing:
Cited – Goldsworthy v Brickell CA 1987
The plaintiff had granted a tenancy of his substantial farm to the first defendant, and made him a partner. The first defendant later bought out the plaintiff who was in turn later reconciled with his only son who had previously had some . .
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .

Lists of cited by and citing cases may be incomplete.

Trusts, Undue Influence

Updated: 13 December 2021; Ref: scu.266471

Mortgage Express v Abensons Solicitors (A Firm): ChD 20 Apr 2012

The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation of breach of trust had improperly removed a limitation defence.
Held: The appeal was allowed. The court noted that the claimant may in any event have issued new proceedings in which the fiduciary breach claims were raised, and it would be for another court to consider whether the claims should later be consolidated.

Cooke J
[2012] EWHC 1000 (Ch)
Bailii
Limitation Act 1980 32
England and Wales
Citing:
Cited – Welsh Development Agency v Redpath Dorman Long Ltd CA 4-Apr-1994
A new claim was not deemed to have been made until the pleading was actually amended for limitation purposes, and should not be allowed after the limitation period had expired. The date of the application for leave to amend was not at issue. The . .
Cited – Moody v Cox and Hatt CA 1917
An action was brought for rescission of a contract of sale of a public house and four cottages, with a counterclaim for specific performance. The sellers, Hatt and Cox, were respectively a solicitor and his managing clerk. They were the trustees of . .
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 . .
Cited – Mortgage Corporation v Alexander Johnson (A Firm) ChD 7-Jul-1999
The rule that in the case of a dispute as to whether a claim was time barred, a fresh action had to be begun to allow the proposition to be tested, did not apply where the delay arose from some deliberate concealment of the cause of action by the . .
Cited – Cave v Robinson Jarvis and Rolf (a Firm) HL 25-Apr-2002
An action for negligence against a solicitor was defended by saying that the claim was out of time. The claimant responded that the solicitor had not told him of the circumstances which would lead to the claim, and that deliberate concealment should . .
Cited – Leeds and Holbeck Building Society v Arthur and Cole ChD 2001
A claim for breach of fiduciary duty by a solicitor as against his lender client, required that it be found that the solicitor ‘did not disclose matters which he admittedly ought to have done to the claimant, intentionally and consciously, knowing . .
Cited – Seaton and Others v Seddon ChD 23-Mar-2012
The claimants sought damages alleging that royalties were due to them. The defendant solicitors applied to strike out the action as against themselves as an abuse of process. . .
Cited – Williams v Fanshaw Porter and Hazelhurst CA 18-Feb-2004
The claimant alleged that her solicitors had concealed from her the fact that they had entered a consent order which dismissed her claim for medical negligence.
Held: The solicitor had failed to inform the client that her original claim . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Trusts, Litigation Practice, Limitation

Updated: 13 December 2021; Ref: scu.457680

Thompson’s Trustee in Bankruptcy v Heaton: ChD 1974

Sir John Pennycuick VC explained the rule in Keech v Sandford: ‘The fiduciary relation here [between partners] arises not from a trust of property but from the duty of good faith which each partner owes to the other. It is immaterial for this purpose in which partner the legal estate in the leasehold interest concerned is vested. What then is the position when a partnership is dissolved but there remains property of the former partnership which has not been realised? The general principle, I think, is correctly stated in Lindley on Partnership 13th ed. (1971) . . in the following terms: ‘Upon the dissolution of a partnership, and in the absence of any Partnership Agreement to the contrary, it has been seen . . (4) That, for the purposes of winding up, the partnership is deemed to continue; the good faith and honourable conduct due from every partner to his co-partners during the continuance of the partnership being equally due so long as its affairs remain unsettled; and that which was partnership property before, continuing to be so for the purpose of dissolution, as the rights of the partners require.’
It necessarily follows, I think, that where the property of a dissolved partnership includes a leasehold interest, then subject to any other arrangement which may be made between the partners concerning that interest, each of the former partners owes the same obligation to the other former partner in respect of that interest as he did while the leasehold interest remained the partnership property and, accordingly, he is under the same limitations with regard to the purchase of the reversion as he would have been had the partnership still been subsisting.’

Sir John Pennycuick VC
[1974] 1 WLR 605, [1974] 1 All ER 1239
England and Wales

Trusts

Updated: 13 December 2021; Ref: scu.510903

Inglis v Gillanders: SCS 22 Dec 1894

In his trust-settlement a testator directed his trustees to execute a deed of entail of his estate of Newmore to and in favour of a series of heirs therein specified, ‘whom failing to my nephew, J. F. G., Esquire of Highfield, and failing the whole persons above specified, then from respect to my deceased grandfather, G. G., Esquire of Highfield, to the heir in possession of the estate of Highfield under the entail thereof for the time, and to the other heirs-substitute in said entail in the order set down in said entail successively, declaring that my object and intention is that, failing the above series of heirs named by me, then the said lands and estate hereby conveyed are to be held by the heir of entail of the estate of Highfield along with the said estate of Highfield.’ In a codicil the truster desired it to be understood that the destination to J. F. G., as well as the subsequent destination to the heir in possession of the estate of Highfield, was made by him out of respect to the memory of his late grandfather, G. G. of Highfield.
The trustees executed a deed of entail, in which they disponed the lands of Newmore to the series of heirs other than the heirs of entail of Highfield in the very words of the destination contained in the trust-deed, ‘whom failing to J. F. G., Esquire of Highfield, who is the heir now in possession of the estate of Highfield, under the entail thereof executed by G. G., Esquire of Highfield . . and failing the said J. F. G., then to the other heirs-substitute in said entail of Highfield in the order set down in said entail respectively, viz.’-The heirs-substitute as they stood at the time were then enumerated in their order.
Held (rev. judgment of Lord Kyllachy) that the trustees had not acted ultra vires in making the destination of the estate of Newmore to the heirs of entail of Highfield in the terms above specified, and that that destination did not become inoperative when the estate of Highfield was disentailed.

[1894] SLR 32 – 164
Bailii
Scotland

Trusts

Updated: 11 December 2021; Ref: scu.613197

Osoba v Osoba and others: CA 31 Oct 1978

Appeal by the plaintiff from an order declaring upon the true construction of the will of Patrick Jacob Osoba deceased, and in the events which have happened, that the residue of the estate of the testator, situate in England, is held upon trust for the persons other than the testator’s mother, named in clause 3 of the said will in equal shares absolutely.
Held: there is a general rule that when one sees a gift of income without any gift over to a particular named person for a particular purpose, that ordinarily the purpose is a mere indication of motive and does not cut down the out and out gift.

Buckley, Goff, Eveleigh LJJ
[1979] 1 WLR 247, [1979] 2 All ER 393, [1978] EWCA Civ 3
Bailii
England and Wales

Wills and Probate, Trusts

Updated: 11 December 2021; Ref: scu.262696

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.

Lord Denning MR Lord Russell of Killowen, Eveleigh LJ
[1977] EWCA Civ 11, [1978] Ch 49, [1978] 1 All ER 1047, [1978] 2 WLR 411
Bailii
England and Wales
Citing:
Cited – Re Coxen, McCallum v Coxen ChD 1948
The provision for an annual dinner for the charity trustees did not undermine the body’s charitable status.
Jenkins J summarised the law applicable where ‘a fund or the income thereof is directed to be applied primarily to purposes which are . .
Cited – Whishaw v Stephens (on appeal from In re Gulbenkian’s Settlement) (No 1) HL 31-Oct-1968
Parties disputed the effect of clauses describing the beneficiaries of a trust.
Held: The clause did not make sense as it stood. In a fixed non-charitable trust (as opposed to a discretionary trust) the court must be able to draw up a list of . .
Cited – 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 . .
Cited – Clayton v Ramsden HL 1943
A condition in the will was that the legatee, his daughter, should not marry a person ‘not of Jewish parentage and of the Jewish faith.’
Held: The condition was void for uncertainty. Lord Russell of Killowen said: ‘The courts have always . .
Cited – Re Allen (dec’d) CA 1953
The testator had devised property to the eldest of the sons of his nephew ‘who shall be a member of the Church of England and an adherent to the doctrine of that Church’.
Held: The will created a condition precedent or qualification in . .
Cited – Patton v The Toronto General Trusts Corporation and Others PC 30-Jun-1930
(Ontario) The court considered the validity of gifts of annuities made subject to a condition precedent that the beneficiary proves himself to be ‘of the Lutheran religion’.
Held: The claim to the annuity was made out. Evidence might be given . .
Cited – Re Tarnpolsk ChD 1958
It was impossible to give sufficient meaning to the phrase ‘a person of the Jewish race’, and the condition failed for conceptual uncertainty, even in a condition precedent. . .
Cited – Re Selby’s Will Trusts ChD 1966
. .
Cited – Re Wynn (deceased) 1952
A provision in a will which purported to make the decision of the trustees final on any matter in dispute between them and the beneficiaries was a provision calculated to oust the jurisdiction of the court and so was void as being contrary to public . .

Cited by:
Cited – Creasey and Another v Sole and Others ChD 24-May-2013
The parties, brothers and sisters, disputed ownership of lands to be inherited from the estates of their parents, and whether parts of the farm purchased in several lots under different ownerships descended as part of the farm. . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 11 December 2021; Ref: scu.262703

Grey and Another (Hunter’s Nominees) v Inland Revenue Commissioners: CA 1958

Where a person who is the owner beneficially of property (and the legal estate is vested in another as trustee for him) makes a declaration of trust the practical effect amounts to the ‘getting rid of’ a trust or equitable interest then subsisting.

Lord Evershed MR
[1958] Ch 690
England and Wales
Cited by:
Appeal from – Grey and Another (Hunter’s Nominees) v Inland Revenue Commissioners; Orse Gray v IRC HL 2-Nov-1959
The House considered whether certain instruments which were presented for adjudication to stamp duty under section 13 of the Stamp Act 1891, are or are not chargeable with ad valorem duty.
Held: The word ‘disposition’ is to be given its . .
Cited – Nelson v Greening and Sykes (Builders) Ltd CA 18-Dec-2007
The builders had obtained a charging order for the costs awarded to them in extensive litigation, and a third party costs order but without the third party having opportunity to test the bill delivered. They had agreed to sell land to the defendant, . .

Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 10 December 2021; Ref: scu.262990

In re Cheyne Finance Plc: ChD 12 Sep 2007

The Receivers sought directions as to how to apply monies coming into their hands on the basis that, on advice, they considered that they needed the Court’s answer to an underlying difficult issue of the construction of the Security Trust Deed. The court was asked how the Receivers should apply monies coming into their hands during the period between their appointment and the happening, if one should happen, of an Insolvency Event, as defined. That turned on a question of construction of the Trust Deed. The court assumed that an Insolvency Event had not yet occurred.
Held: Pending the happening of an Insolvency Event the Receivers should apply monies coming into their hands, first, in prompt payment of the debts of Senior Creditors and any prior debts as and when they fell due; secondly, in making provision for payment of the same classes of debt not yet due and, if that left any surplus in the manner provided for in the payment priority established in clause 12.1(c) and following of the Trust Deed.

Briggs J
[2007] EWHC 2402 – 2 (Ch), [2007] EWHC 2116 (Ch), [2008] 1 BCLC 732
Bailii, Bailii
Insolvency Act 1986
England and Wales
Cited by:
See Also – In re Cheyne Finance Plc (No 2) ChD 17-Oct-2007
The court was asked as to the treatment of the assets of the company in case of a future insolvency.
Held: Briggs J decided section 123(1)(e) required: ‘In my judgment, the effect of the alterations to the insolvency test made in 1985 and now . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Trusts

Updated: 10 December 2021; Ref: scu.264445

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 method of calculation which placed upon the new employer the burden of carrying on employer contributions at the current rate. But at the time of the transfer the trustees were not informed that rises in the stock market meant that the fund was in surplus. If they had known, another method of calculation would have been used which would have resulted in a reduction of employer’s contributions or the possibility of augmented benefits.
Held: There should be a recalculation, because the trustees had failed to take into account a highly material factor. Trustees have a fiduciary duty to follow a correct procedure in the decision-making process. This duty lies at the heart of the Rule in Hastings-Bass, which is directed at ensuring for the protection of the beneficiaries under the trust that they are not prejudiced by any breach of such duty.
Dillon LJ: ‘I should add that I have no difficulty in reconciling the judgment in Kerr v. British Leyland (Staff)Trustees Ltd. with the decision of this court in Re Hastings-Bass [1975] Ch 25 to which we were also referred. What was material in Hastings-Bass was that in order to save estate duty the trustees wanted by way of advancement to create an immediate life interest in the funds in question. This they had effectively done. Had they appreciated that the trusts in remainder after the life interest which they also purported to appoint would be void for perpetuity, they would no doubt have appointed other, valid, trusts in remainder. But they would still have created the same life interest, and any difference in the trusts in remainder was immaterial to that.’

Staughton LJ, Dillon LJ, Ralph Gibson LJ
[1991] Pensions Law Reports 225, [1992] IRLR 27
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 . .
Applied – Kerr v British Leyland (Staff Trustees) Ltd 26-Mar-1986
In confirming that trustees did not have an uncontrolled discretion to determine whether the incapacity of a beneficiary of the trust was permanent, the Court held ‘Now this is not a case of trust where the beneficiaries are simply volunteers. The . .
Appeal from – Stannard v Fisons Ltd; Stannard v Fisons Pensions Trust CA 2-Jan-1990
The purchaser of a business said that the company had made insufficient contributions to its pensions fund before the transfer, and sought payment of the sums underpaid. The defendants argued that, applying Hastings-Bass, unless that principle were . .

Cited by:
Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Cited – Sieff v Fox ChD 23-Jun-2005
The advisers to trustees wrongly advised the trustees about the tax consequences of exercising a power of appointment in a certain way. As a result a large unforeseen Capital Gains Tax liability arose. The trustees sought to set aside the . .
Cited – Abacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr ChD 6-Feb-2003
The court considered the Rule in Hastings-Bass, and specifically (1) whether the trustee’s decision is open to challenge when the failure to take a consideration into account is not attributable to a breach of fiduciary duty on the part of the . .
Cited – Burrell and Sharman v Burrell, Shore, Tyrrell, etc ChD 23-Feb-2005
burrell_burrellChD05
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 . .
Cited – Gallaher Limited v Gallaher Pensions Limited, C Foster, D Silver ChD 21-Jan-2005
Construction of amendments to pension scheme. . .
Cited – Allan v Rea Brothers Trustees Limited CA 8-Feb-2002
The claimant appealed dismissal of his claim for damages for breach of trust. The respondent had administered his pension, a ‘small self-administered scheme’. The regulations required a pensioner trustee who took on specific duties. He had been . .
Cited – Futter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .

Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 10 December 2021; Ref: scu.181651

Green v Folgham: 10 Jun 1823

[1823] EngR 586, (1823) 1 Sim and St 398, (1823) 57 ER 159
Commonlii
England and Wales
Cited by:
Cited – Prince Albert v Strange ChD 8-Feb-1849
albert_strange1849
The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
Held: . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Trusts

Updated: 10 December 2021; Ref: scu.328626

Anglo German Breweries Ltd v Chelsea Corporation Inc and Others: Chd 29 May 2012

Claim by the liquidator of Anglo German Breweries Limited for the transfer to AGB of a disused bingo hall in Walthamstow, London. The bingo hall was bought with money provided by the late Mr. Tufail Ahmad. At the time of the purchase, TA was awaiting trial for his participation in an alcohol diversion fraud, involving alcoholic drinks consigned to bonded warehouses being diverted for consumption in the UK, thereby evading payment of excise duty and VAT. He was convicted of this offence in 1997, sentenced to 6 years in prison and fined pounds 2 million.

Mr N Strauss QC,
(Sitting as a Deputy Judge),
Between:
[2012] EWHC 1481 (Ch)
Bailii
England and Wales

Trusts

Updated: 06 December 2021; Ref: scu.459887

Chellaram and Another v Chellaram and others (No 2): ChD 16 Apr 2002

One of the defendants had not been properly served by posting the proceedings to an address at which he stayed on his very occasional visits to London. The proceedings had not been issued for the purposes of service abroad, because at the time of deemed service under CPR 6 he was not physically within the jurisdiction: ‘In my judgment there are two separate reasons why Sham has not been validly served. First, the claimants have not adduced any evidence which casts doubt on Sham’s evidence that the address in St John’s Wood is used only occasionally by him on the rare occasions when he visits London. In these circumstances there is no evidence that it ever was a ‘residence’ and it therefore cannot be his ‘last known residence’. Secondly, it has always been, and remains, a fundamental rule of English procedure and jurisdiction that a defendant may be served with originating process within the jurisdiction only if he is present in the jurisdiction at the time of service, or deemed service. The Barclays Bank case is simply an illustration of this principle . . CPR Pt 6 contains general rules about service of documents and does not only apply to service of a claim form . . but I do not consider that CPR 6.5 has swept away the general principle so far as it relates to service of the claim form.’

Mr Justice Collins
[2002] EWHC 632 (Ch), [2002] 3 All ER 17, [2002] WTLR 675, (2001-02) 4 ITELR 729
Bailii
England and Wales
Citing:
Cited – Cadogan Properties Limited v Mount Eden Land Limited CA 29-Jun-1999
If the defendant is outside England, an order for substituted service in England could not be obtained unless permission to serve proceedings out of the jurisdiction has first been obtained. . .
Cited – Barclays Bank Swaziland Ltd v Hahn HL 1989
The House considered the validity of service of proceedings. Documents were served by means of ‘letterbox service’ when the defendant was en-route to this country but was not within the jurisdiction. Later that day he arrived within the jurisdiction . .

Cited by:
Cited – Fairmays (A Firm) v Palmer ChD 31-Jan-2006
The defendant appealed against a decision not to set aside a judgment obtained against him by default. Whilst he retained a property in England, he lived in Ethiopia. The claim was served at the address in England, but was redirected to another . .
Cited – Gomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .
Cited – Kamali v City and Country Properties Ltd CA 24-Jul-2006
The defendant tenant appealed against judgment saying that the proceedings in the County Court had not been correctly served. Though the documents had been sent to his address under the lease, he had been out of the jurisdiction when the claim was . .

Lists of cited by and citing cases may be incomplete.

Trusts, Civil Procedure Rules

Updated: 06 December 2021; Ref: scu.170252

Egerton v Earl of Brownlow: HL 1853

The House considered a challenge to the terms of a trust on the basis that it offended public policy. The House therefore considered the nature and importance of public policy.
Held: Public policy ‘has been confounded with what may be called political policy; such as whether it is politically wise to have a sinking fund or a paper circulation, or the degree and nature of interference with foreign States; with all which, as applied to the present subject, it has nothing whatever to do.’ For these reasons, in our view, the defendants’ point on public policy is wholly unfounded.’ (Lord Truro)
Parke B: ‘Public policy is a vague and unsatisfactory term, and calculated to lead to uncertainty and error, when applied to the decision of legal rights; it is capable of being understood in different senses; it may, and does, in its ordinary sense, mean ‘political expedience,’ or that which is best for the common good of the community; and in that sense there may be every variety of opinion, according to education, habits, talents, and dispositions of each person, who is to decide whether an act is against public policy or not. It is the province of the statesman, and not the lawyer, to discuss, and of the Legislature to determine, what is best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law only; the written from the statutes: the unwritten or common law from the decisions of our predecessors and of our existing courts, from the text writers of acknowledged authority, and upon principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is best, in his opinion, for the advantage of the community. Some of these decisions may have no doubt been founded upon the prevailing and just opinions of the public good; for instance, the illegality of covenants in restraint of marriage or trade. They have become part of the established law, and we are therefore bound by them, but we are not thereby authorised to establish as law everything which we may think for the public good, and prohibit everything which we think otherwise.’

Lord Truro, Parke B
[1853] 4 HLC 484, [1853] 4 HLC 1, [1853] EngR 885, (1853) 10 ER 359
Commonlii
England and Wales
Citing:
Appeal from – Egerton v Lord Brownlow 20-Aug-1851
John WilIiam Earl of Bridgewater devised his freehold estates to trustees, in trust to convey them to the use of Lord Alford, his great-nephew, for ninety-nine years, if he should so long live ; remainder to trustees and their heirs doring the life . .

Cited by:
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Lound v Grimwade ChD 1886
The plaintiff tried to set aside a bond, saying that he had executed it under duress in the form of the threat of criminal proceedings.
Held: The bond had not been executed under pressure at law. However the consideration for it included a . .
Cited – Australia and New Zealand Banking Group Ltd v Compagnie Noga D’Importation Et D’Exportation Sa and Another ComC 21-Feb-2007
Non-payment of bills of exchange – construction of settlement agreement. It was said that the compromise agreement ws unenforceable as being against public policy in restraining one party.
Held: The restraint ‘does not affect the course of . .

Lists of cited by and citing cases may be incomplete.

Trusts, Constitutional

Updated: 05 December 2021; Ref: scu.235300

SQ v RQ and Another: FD 31 Jul 2008

The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s family and was subject to an old but uncompleted series of transactions designed to protect it from Inheritance tax.
Held: The transactions in 1986 were to have left the property in trust for the husband and wife. However the trust was created for an unlawful purpose, and it was too late to withdraw from the transaction. Either an estoppel had been created or there was a concluded contract for the transfer of the land. In either case an interest had been created.

Black J
[2008] EWHC 1874 (Fam), [2009] WTLR 1591, [2009] 1 P and CR DG5, [2009] Fam Law 17, (2008-09) 11 ITELR 748, [2009] 1 FLR 935
Bailii
England and Wales
Citing:
Cited – Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .
Cited – Tinker v Tinker CA 1970
The husband bought a business in Cornwall and a house for his family. At first he intended to buy the house in his own name, but was advised that if the venture failed, the house could be taken by his creditors as part of his business assets. It was . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of 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 – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
Cited – Taylor v Bhail CA 1-Nov-1995
A contract involving a fraudulent insurance claim will not be enforced by courts. . .
Cited – Kearley v Thompson 1890
The plaintiff could claim a locus poenitentiae on the grounds of repentance because its confession to the fraud was the result of the frustration by others of its fraudulent purpose. Recovery under a contract performed unlawfully was barred once it . .
Cited – Lowson v Coombes CA 26-Nov-1998
A house was purchased by an unmarried couple to live together, but conveyed into the female partner’s sole name. Her partner was still married, and she feared that on his death his wife would inherit.
Held: ‘the case being one of illegality, I . .
Cited – Bigos v Bousted 1951
The defendant sought to send his family abroad for his daughter’s health, but wanted to provide more money than would be allowed under exchange controls. He entered into an unlawful arrangement with the plaintiff an Italian national to get around . .
Cited – Collier v Collier CA 30-Jul-2002
Fraudulent Intent Negated Trust
The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . .
Cited – Painter v Hutchison and Another ChD 3-Apr-2007
The court was asked whether the illegal intention behind the execution of a declaration of trust had been carried into effect to the extent that it prevented P from asserting that a declaration of trust in relation to a property was a sham and that . .
Cited – 21st Century Logistic Solutions Limited (In Liquidation) v Madysen Limited QBD 17-Feb-2004
The vendor sold computers to the defendant, intending not to account to the commissioners for the VAT. The seller went into liquidation, and the liquidator sought payment. The purchaser had been unaware of the intended fraud and resisted payment. . .
Cited – Barrett v Barrett ChD 19-May-2008
Claim against receiver that bankrupt’s property was held as trustee in trust for claimant. The illegal purpose was to conceal T’s interest in the proceeds of sale from the trustee in bankruptcy thus preventing him from laying claim to property which . .

Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 05 December 2021; Ref: scu.276701

Thomas Duffield, Esq And Emily Frances His Wife v Amelia Maria Elwes, Widow, Francis Const And George Law, Abraham Henry Chambers, The Rev William Hicks, Clerk and Others: 1825

[1825] EngR 313, (1825) 3 B and C 705, (1825) 107 ER 894
Commonlii
England and Wales
Citing:
See Also – Duffield v Elwes 12-Jun-1823
Land subject to mortgage – possible gift donatio mortis causa? . .

Cited by:
See Also – Duffield v Elwes 1-Jun-1826
. .
See Also – Thomas Duffield, And Emily Frances His Wife v Elwes, Chambers, Hicks And others PC 1827
. .
See Also – Thomas Duffield, And Emily Francis His Wife, Plaintiffs In The Court Of Chancery v Amelia Maria Elwes, Francis Const, George Law, Abraham Henry Chambers, William Hicks, George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duff PC 1829
. .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 02 December 2021; Ref: scu.326404