Category: Trusts

Stiffe v Everitt: 23 Jan 1836

A testator gave his residuary estate to trustees, upon trust to invest the proceeds, and pay the profits, dividends, or interest thereof to the separate use of his daughter for life, exclusive of any husband she might marry, without power of anticipation, but with a power to appoint the capital of the fund, such appointment to take effect only from and after her decease. The daughter, who, at the date of the will, and at the testator’s death, was a feme sole, afterwards married, ancl joined with her hushand in petitioning to have the fund transferrecl to him absolutely, oflering, at the same time, to execute any appointment which the Court might think proper for that purpose ; but the Court refused to make any order.
Semble, a husband and wife cannot effectually clispose of the life interest of the wife in a fund not settled to her seperate use, heyond the duration of the coverture.

Citations:

[1836] EngR 342, (1836) 1 My and Cr 37, (1836) 40 ER 290

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 15 May 2022; Ref: scu.314674

Wardle v Carter: 23 Dec 1835

A. was entitlecl for the joint lives of himself and his father to a rent-charge of andpound;500 charged on an estate of which his father was tenant for life, with remainder to A in fee. A having agreed to sell to B a perpetual rentcharge of andpound;500 issuing out of the estate, assigned to E. the rent-charge to which he was so entitled, and conveyed his reversion in fee to trustees in trust to secure to B a rent-charge of andpound;500 a year, to commence on the termination of the prior rent-charge. Held, that the transaction was not to be considered as a sale of an interest in reversion, as A when he made the agreement, had it in his power to secure to B a perpetual rentcharge of andpound;500 in possession.
In determining whether a fair price has been paid for a reversionary interest, the market value, and not an actuary’s estimate, ought to be regarded.

Citations:

[1835] EngR 1081, (1835) 7 Sim 490, (1835) 58 ER 925

Links:

Commonlii

Trusts

Updated: 15 May 2022; Ref: scu.316589

The Attorney-General v Jesus College, Oxford: 13 Feb 1861

A testator devised his estate for providing andpound;108 a year for scholars and exhibitioners of a college, and the remainder of the yearly rents for purchasing advowsons for them. By a codicil, he gave for a school and schoolmaster a house and land at Bala, and andpound;15 a year for the master, and andpound;15 to the scholars, and he gave the money necessary for keeping the school in repair; ‘there beirig andpound;4, 17s. of the present rents ‘I of his estate in Merionethshire, above the andpound;108 to the scholars and exhibitioners at the college, and andpound;15 to the schoolmaster, and andpound;15 to the scholars at Bala; but the house and land at Bala ‘being of the yearly rent of andpound;3, 13s being so much of the andpound;4, 17s., the remainder thereof is andpound;1 5s. per annum for the repairs.’ The rental having greatly increased, held that the school ‘was entitled to such a proportion of the increase as andpound;4, 17s. bore to the whole original rents.

Citations:

[1861] EngR 322, (1861) 29 Beav 163, (1861) 54 ER 589

Links:

Commonlii

Trusts

Updated: 15 May 2022; Ref: scu.284083

Harrold v Harrold: 23 Jul 1861

A trust to raise by sale of a competent part of a sum of andpound;3389 Bank annuities a sum not exceeding andpound;2000, and pay -andhe same to the Plaintiff : Held, not to be exhausted or fully performed by raising a sum of 31391 at the Plaintiffs request.

Citations:

[1861] EngR 833, (1861) 3 Giff 192, (1861) 66 ER 378

Links:

Commonlii

Trusts

Updated: 15 May 2022; Ref: scu.284594

Swales v Inland Revenue Commissioners: 1984

Nicholls J said: ‘It is trite law that trustees cannot fetter the exercise by them at a future date of a discretion possessed by them as trustees.’

Judges:

Nicholls J

Citations:

[1984] 3 All ER 16

Cited by:

Cited – Jones and others v Firkin-Flood ChD 17-Oct-2008
The trustees had contracted to sell shares in a private company held within the estate. A family member now claimed that they were held in trust after a settlement of a possible challenge to the will based in lack of testamentary capacity and undue . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 15 May 2022; Ref: scu.277068

Abrahams v Trustee In Bankruptcy of Abrahams: ChD 26 Jul 1999

A member of a lottery syndicate having paid into it, acquired the right that any winnings should be held in trust upon the terms of the syndicate’s lottery agreement which then applied. It was possible that such a right could be held as a property right upon a resulting trust. A couple, members of a syndicate, separated, but the wife paid in both names. She was entitled since she was the originator of both fees.

Citations:

Times 26-Jul-1999, Gazette 11-Aug-1999

Trusts

Updated: 15 May 2022; Ref: scu.77621

Denvir v Denvir: 1969

Citations:

1969 SLT 301

Cited by:

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

Scotland, Trusts

Updated: 14 May 2022; Ref: scu.251490

Galloway v Galloway: 1929

Citations:

1929 SC 160

Cited by:

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

Scotland, Trusts

Updated: 14 May 2022; Ref: scu.251488

Regina v District Auditor No 3 Audit District of West Yorkshire Metropolitan County Council ex parte West Yorkshire Metropolitan County Council: 1986

Citations:

[1986] RVR 24

Jurisdiction:

England and Wales

Cited by:

Cited – Gibbs v Harding and others ChD 12-Jan-2007
The testatrix left a will anticipating making another. The court was asked whether a clause leaving her estate to ‘be taken over by the Diocese of Westminster to hold in trust for the Black community of Hackney’ was valid.
Held: The gift was . .
Lists of cited by and citing cases may be incomplete.

Rating, Trusts

Updated: 14 May 2022; Ref: scu.247690

Harman v Glencross: 1986

On the divorce, the wife applied for a property transfer order in relation to the jointly owned matrimonial home. A creditor of her husband then obtained a charging order on H’s interest. She sought its varation. The creditor said that there was little point in this since any transfer in her favour would be void against the husband’s trustee in bankruptcy under section 42.
Held: The decision in In Re Holliday was very much against the run of recent authorities. Balcombe LJ rejected the creitor’s suggestion saying: ‘the wife gave up her claim for periodical payments, and it seems to me that this constituted valuable consideration on her part which would preclude a trustee in bankruptcy of the husband from maintaining that the transfer of property order was void as against him – see Re Abbott [1983] Ch 45.’

Judges:

Balcombe LJ

Citations:

[1986] Fam 81, [1986] 2 FLR 241

Statutes:

Bankruptcy Act 1914 42

Citing:

Cited – In re Holliday CA 1981
A property adjustment order cannot be made against a bankrupt former spouse because the property of the bankrupt vests in the trustee in bankruptcy against whom an order under section 24 cannot be made. It was highly unlikely that postponement of . .
Cited – In re Abbott ChD 1983
W divorced H, and under a property adjustment order made by consent, the jointly owned matrimonial home was transferred to her outright. H was made bankrupt less than two years later, and the trustee sought a declaration that the consent order or . .

Cited by:

Cited – Donohoe v Ingram ChD 20-Jan-2006
The appellant had lived with the bankrupt for several years, and sought an order delayng sale of the house they had lived in until their children had grown up. She said the circumstances were exceptional.
Held: The fact that the delay might . .
Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 14 May 2022; Ref: scu.238750

Re CL: 1969

Trustees sought the court permission to distribute assets in such a way as to extinguish the beneficiary’s interest in favour of her adopted children with a consequent saving of estate duty on her death with no real detriment to the material position of the beneficiary.
Held: The word benefit included the proposed arrangement.

Citations:

[1969] 1 Ch 587

Cited by:

Cited – X v A and others ChD 29-Nov-2005
The wife sought confirmation that the trustees of a discretionary marriage settlement created by her husband could release sums which she intended to pay out for charitable purposes.
Held: The trust required money to be released for the . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 14 May 2022; Ref: scu.237753

Re Walker: 1901

Citations:

[1901] 1 Ch 897

Jurisdiction:

England and Wales

Cited by:

Cited – X v A and others ChD 29-Nov-2005
The wife sought confirmation that the trustees of a discretionary marriage settlement created by her husband could release sums which she intended to pay out for charitable purposes.
Held: The trust required money to be released for the . .
Lists of cited by and citing cases may be incomplete.

Trusts, Charity

Updated: 14 May 2022; Ref: scu.237755

Re Hampden’s Settlement Trusts: 1977

A settlement was made on the beneficiary’s children relieving him of the ‘considerable obligation in respect of making provision for their future’ which he would otherwise have owed.
Held: This constituted a benefit for the settlor. The court accepted submissions as to whether a proposed transaction was on behalf of a beneficiary: i) that a power to apply capital for the benefit of somebody is the widest possible formulation of such power;
ii) that under such a power the trustees can deal with capital in any way which, viewed objectively, can fairly be regarded as being to the benefit of the object of the power, and subjectively they believe to be so;
iii) such benefit need not consist of a direct financial advantage to the person who is being benefited. It may be that he is benefited by benefiting a near relation or by relieving him of moral responsibilities.
The phrase ‘viewed objectively meant: ‘the figures are such that it is quite possible to regard this provision for the children, although generous, as being for the benefit of [the beneficiary]. By way of reductio ad absurdum if [the beneficiary] had himself no resources whatever then I do not think it would be possible objectively to regard the making of a provision of half a million pounds or thereabouts for his children as realistically conferring a benefit upon him . . here he is himself . . very well provided for, and that makes all the difference. In every case the question must be one of degree, but there are no such difficulties in this case.’

Citations:

[1977] TR 177

Trusts

Updated: 14 May 2022; Ref: scu.237754

Kyriakides v Pippas: 2004

When considering the trusts on which land is held, and where there is no declaration of trust, the court puts itself in the position of a jury and considers all the circumstances of the case, so as to arrive at the purchaser’s real intention: ‘I suspect the position we have now reached is that the courts will always strive to work out the real intention of the purchaser and will only give effect to the presumptions of resulting trust and advancement where the intention cannot be fathomed and the ‘long-stop’ or ‘default’ solution is needed.’

Judges:

Gabriel Moss QC

Citations:

[2004] EWHC (Ch) 644

Jurisdiction:

England and Wales

Citing:

Cited – Lavelle v Lavelle and others CA 11-Feb-2004
Property had been purchased in the name of of the appellant by her father. She appealed a finding that the presumption of advancement had been rebutted.
Held: The appeal failed. The presumption against advancement had been rebutted on the . .
Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .

Cited by:

Cited – Crossley v Crossley CA 21-Dec-2005
The claimant appealed an order that a house was to be held in equal shares with her son. The house was registered in their joint names, but the transfer contained no declaration of the interests. The house had been originally bought by the mother . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 14 May 2022; Ref: scu.237546

Gascoigne v Gascoigne: 1918

When a husband put a house in his wife’s name so as to avoid it being taken by his creditors, the house belonged to the wife. The husband could not be heard to say that it belonged to him because he could not be allowed to take advantage of his own dishonesty.

Citations:

[1918] 1 KB 223

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 14 May 2022; Ref: scu.236574

Harwood v Harwood: CA 1991

The court rejected the argument that declaring in a transfer of land that the survivor ‘can give a valid receipt for capital money arising on a disposition of the land’ in itself amounts to an express declaration of a beneficial joint tenancy.

Citations:

[1991] 1 FLR 274

Jurisdiction:

England and Wales

Cited by:

Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 13 May 2022; Ref: scu.230913

Cantor v Cox: 1975

An unmarried couple had lived together, and now disputed its ownership. It had been purchased in the sole name of the woman. The executrix of the will of the woman claimed possession of the house, in which the man was still living. He counterclaimed for a declaration that he was beneficially entitled to it.
Held: The presumption of advancement does not apply as between an unmarried couple living together as husband and wife, where the claimant cannot be heard or allowed to assert his claim to an equitable interest. ‘Here the legal estate was in the testatrix, and the defendant came to the court seeking equitable relief. The equitable presumption of a resulting trust which arose where the purchase-money was provided by someone other than the person taking the legal estate was always rebuttable by evidence of actual intention. The evidence in this case was perfectly plain. The defendant put the house into the name of the testatrix in order to be out of reach of his creditors.’

Judges:

Plowman V-C

Citations:

(1975) 239 EG 121

Jurisdiction:

England and Wales

Citing:

Cited – Muckleston v Brown 8-May-1801
‘Let the estate lie where it falls.’ . .

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 13 May 2022; Ref: scu.236575

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 fearful of a potential substantial liability and it had been done to protect the property against those creditors.
Held: Equity will not permit a transferor of property by way of gift in order to perpetrate a fraud to pray in aid the existence of that illegal purpose in order to rebut a presumption of advancement. ‘the leases ‘were shams as between father and daughter’. The daughter ‘should at most be his nominee and effectively the lease should be available to be used only if required in order to deceive’. He made the grants to the daughter ‘with the intention that if it served his interest he should treat the grants as gifts, but if it did not he would claim that the grant was subject to his beneficial interest.’ The transfers were carried out ‘with the object of defrauding the respective mortgagees of their security’. There had been no voluntary withdrawal from the transaction. To recover the property the father needed to rely upon the agreement which set up the trust. That agreement provided that the trust should be concealed from creditors and the Inland Revenue. The result is that the father cannot dispute the effect of the transfers of the property without relying upon his illegality. The property must lie where it rests. ‘

Judges:

Lord Justice Aldous, Mance LJ

Citations:

[2002] EWCA Civ 1095, [2002] BPIR 1057, [2002] 6 ITELR 270

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Collier v Kramer CA 1-Apr-2004
Appeal from a refusal to allow an amendment to join further parties to an action by Mr Michael Collier against solicitors . .
Cited – Snell v Unity Finance Company Ltd CA 1964
The court must not permit itself to be the instrument by which an illegal contract is enforced. Points such as to illegality should be taken by the court irrespective of the wishes of the parties; and if not taken by the judge at trial, should be . .
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 – Muckleston v Brown 8-May-1801
‘Let the estate lie where it falls.’ . .
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 – Tribe v Tribe CA 26-Jul-1995
Illegal intent alone rebutted presumption
The plaintiff held 499 of the 500 issued shares of a company. In 1986 he wished to retire and transferred 30 shares to his son, one of four children, who was to take over the business. In 1988 he was worried about a bill for dilapidations, and, to . .
Cited – Snook v London and West Riding Investments Ltd CA 1967
Sham requires common intent to create other result
The court considered a claim by a hire-purchase company for the return of a vehicle. The bailee said the agreement was a sham.
Held: The word ‘sham’ should only be used to describe an act or document where the parties have a common intention . .
Cited – A G Securities v Vaughan; Antoniades v Villiers and Bridger HL 10-Nov-1988
In Antoniades, the two tenants occupied an attic, living together. Each had at the same time signed identical agreements purporting to create licences. The landlord had reserved to himself the right to occupy the property and to allow others to . .
Mentioned – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
Cited – Chettiar v Chettiar PC 14-Feb-1962
(Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .
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 – 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 by:

Cited – Lavelle v Lavelle and others CA 11-Feb-2004
Property had been purchased in the name of of the appellant by her father. She appealed a finding that the presumption of advancement had been rebutted.
Held: The appeal failed. The presumption against advancement had been rebutted on the . .
Cited – Lavelle v Lavelle and others CA 11-Feb-2004
Property had been purchased in the name of of the appellant by her father. She appealed a finding that the presumption of advancement had been rebutted.
Held: The appeal failed. The presumption against advancement had been rebutted on the . .
See Also – Collier v Kramer CA 1-Apr-2004
Appeal from a refusal to allow an amendment to join further parties to an action by Mr Michael Collier against solicitors . .
Cited – SQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Leading Case

Updated: 13 May 2022; Ref: scu.175225

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 am of the opinion that the defendant holds one half of the beneficial interest in 1 Queenswood Road on a resulting trust for the plaintiff. ‘

Judges:

Nourse LJ, Henry LJ, Walker LJ

Citations:

Times 02-Dec-1998, Gazette 03-Jun-1999, [1998] EWCA Civ 1849, [1999] 2 WLR 720, [1999] 1 FLR 799, [1999] Fam Law 91, [1999] Ch 373, [1999] 2 FCR 731

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Cantor v Cox 1975
An unmarried couple had lived together, and now disputed its ownership. It had been purchased in the sole name of the woman. The executrix of the will of the woman claimed possession of the house, in which the man was still living. He counterclaimed . .
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 – Muckleston v Brown 8-May-1801
‘Let the estate lie where it falls.’ . .

Cited by:

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

Land, Trusts, Equity

Updated: 13 May 2022; Ref: scu.145328

Buttle v Saunders: ChD 1950

Trustees for sale had struck a bargain for the sale of trust property but had not bound themselves by a legally enforceable contract.
Held: They had a duty to consider and explore a better offer that they received, and not to carry through the bargain to which they felt in honour bound.
Wynn-Parry J said: ‘It is true that persons who are not in the position of trustees are entitled, if they so desire, to accept a lesser price than that which they might obtain on the sale of property, and not infrequently a vendor, who has gone some lengths in negotiating with a prospective purchaser, decides to close the deal with that purchaser, notwithstanding that he is presented with a higher offer. It redounds to the credit of a man who acts like that in such circumstances. Trustees, however, are not vested with such complete freedom. They have an overriding duty to obtain the best price which they can for their beneficiaries. It would, however, be an unfortunate simplification of the problem if one were to take the view that the mere production of an increased offer at any stage, however late in the negotiations, should throw on the trustees a duty to accept the higher offer and resile from the existing offer. For myself, I think that trustees have such a discretion in the matter as will allow them to act with proper prudence. I can see no reason why trustees should not pray in aid the common-sense rule underlying the old proverb: ‘A bird in the hand is worth two in the bush.’ I can imagine cases where trustees could properly refuse a higher offer and proceed with a lower offer. Each case must, of necessity, depend on its own facts.’

Judges:

Wynn-Parry J

Citations:

[1950] 2 All ER 193

Jurisdiction:

England and Wales

Cited by:

Cited – Cowan v Scargill and Others ChD 13-Apr-1984
Trustee’s duties in relation to investments
Within the National Coal Board Pension scheme, the trustees appointed by the NCB were concerned at the activities of the trustees of the miners, and sought directions from the court. The defendants refused to allow any funds to be invested abroad. . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 13 May 2022; Ref: scu.222823

McFarlane v McFarlane: CANI 1972

The parties disputed their respective shares in the family home. The facts in Pettitt and Gissing ‘were not such as to facilitate or encourage a comprehensive statement of this vexed branch of the law’ and ‘much remains unsettled.’ The court reviewed the two cases: ‘two points were put beyond question. The ‘family assets’ doctrine was definitely rejected. See Pettitt per Lord Reid, per Lord Hodson, and per Lord Upjohn. And, secondly, section 17 of the Act of 1882 was held only to be a procedural provision which did not empower the court to alter the existing rights of the parties. See per Lord Reid . . per Lord Morris of Borth-y-Gest . . per Lord Hodson . . per Lord Upjohn . . And per Lord Diplock.
These decisions, as I understand them, have also established or affirmed two rather less negative propositions of law to which I must now refer. The first is that, in the absence of proof to the contrary, a spouse who acquired the legal title to property purchased with the aid of a substantial monetary contribution from the other spouse will hold the property subject to a beneficial interest therein belonging to the other spouse; see Pettitt, per Lord Reid at page 749B, per Lord Hodson at p 810G, per Lord Upjohn at p 815 G-H; and Gissing per Lord Pearson at p 264G-265B. This may be the result of some binding agreement between the spouses; but more usually it will flow from a resulting trust in favour of the contributing spouse who has not the legal title. The extent of the beneficial interests will depend on the circumstances. They will not necessarily be equal, but may be held so where that conclusion accords with the broad merits of the respective claims or with what is fair and reasonable when there is some difficulty or uncertainty in assessing the contributions: see Rimmer v Rimmer [1953] 1 QB 63. The second proposition which I take to be now accepted in Pettitt and Gissing must be stated in a qualified form. It is that in certain circumstances the first proposition can also apply in favour of the spouse without the legal title where that spouse has contributed to the purchase, not directly by finding a part of the price, but indirectly and in a manner which has added to the resources out of which the property has been acquired as, for example, by work done or services rendered or by relieving the other spouse of some, at any rate, of his or her financial obligations.’

Judges:

Lord MacDermott, Lord Chief Justice of Northern Ireland

Citations:

[1972] NI 59

Jurisdiction:

Northern Ireland

Citing:

Cited – Rimmer v Rimmer 1953
Where it is not possible for a court to identify the precise contributions made by partners to a property, the court may take a view that ‘They will not necessarily be equal, but may be held so where that conclusion accords with the broad merits of . .
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Pettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .

Cited by:

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

Trusts

Updated: 13 May 2022; Ref: scu.199947

Springette v Defoe: CA 1 Mar 1992

Property was purchased in joint names, but with no express declaration of the beneficial interests. The couple had lived together for a short time as joint tenants of the local authority. They were able to purchase at a substantial discount from the estimated market value because Miss S had been a tenant of the local authority elsewhere for 11 years or more. The property was purchased with the assistance of a building society mortgage – for the repayment of which they were both liable as covenantors. Treating the mortgage monies as provided in equal shares – and giving Miss Springette credit for the whole of the tenant’s discount – her contribution to the purchase was 75% or thereabouts. They agreed that they were each intended to have some beneficial interest in the property; and it was found as a fact by the trial judge that they never had any discussion at all, at or before the time of the purchase, about what their respective interests were to be.
Held: The property was owned in equal shares; not on the basis of his finding that, although uncommunicated to each other, that was, in fact, the intention of each at the time, but because: ‘It is my judgment that there is sufficient evidence on the facts of inference of common intention or arrangement between the parties that the property should be owned in equal shares’.
Lord Justice Dillon: ‘In Walker v Hall I expressed the view at p 134C that it was not open to this court, in the absence of specific evidence of the parties’ intentions, to hold that the property there in question belonged beneficially to the parties in equal shares, notwithstanding their unequal contributions to the purchase price, simply because it was bought to be their family home and they intended – or possibly one should say ‘hoped’ – that their relationship should last for life. The effect is that, in the absence of an express declaration of the beneficial interests, the court will hold that the joint purchasers hold the property on a resulting trust for themselves in the proportions in which they contributed directly or indirectly to the purchase price, unless there is sufficient specific evidence of their common intention that they should be entitled in other proportions – eg in equal shares notwithstanding unequal contributions – to rebut the presumption of resulting trust.’ and ‘The common intention must be founded on evidence such as would support a finding that there is an implied or constructive trust for the parties in proportions to the purchase price. The court does not as yet sit, as under a palm tree, to exercise a general discretion to do what the man in the street, on a general overview of the case, might regard as fair.’ and ‘But the common intention of the parties must, in my judgment, mean a shared intention communicated between them. It cannot mean an intention which each happened to have in his or her own mind but had never communicated to the other.’ and ‘Since, therefore, it is clear in the present case that there never was any discussion between the parties about what their respective beneficial interests were to be, they cannot, in my judgment, have had in any relevant sense any common intention as to the beneficial ownership of the property. . . . The presumption of resulting trust is not displaced.’
Lord Justice Steyn: ‘Given that no actual common intention to share the property in equal beneficial shares was established, one is driven back to the equitable principle that the shares are to be presumed to be in proportion to the contributions.’

Judges:

Lord Justice Dillon, Lord Justice Steyn, Sir Christopher Slade

Citations:

[1992] 2 FLR 388

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – Huntingford v Hobbs CA 1-Mar-1992
The parties lived together in a property transferred to the woman after her divorce. That house was sold and the defendant contributed the capital. There was a joint mortgage, but the plaintiff alone had an income from which to make payments. The . .
Explained – Evans v Hayward CA 1-Jun-1992
The property had been bought in joint names at a discounted price under a ‘right to buy’ conferred by the Housing Act 1985; but where the discount was substantially attributable to the plaintiff’s former occupation as local authority tenant. The . .
Cited – Saville v Goodall CA 1993
The court considered the requirements to establish that property purchased in one name but for an unmarried couple were to be held on trust: ‘[Counsel] referred us to a recent decision of this court in Springette v Defoe [1992] 2 FLR 388, which . .
Cited – Midland Bank v Cooke and Another CA 13-Jul-1995
Equal equitable interest inferrable without proof
The bank sought to enforce a charge given by the husband to secure a business loan. The property was purchased from the husband’s and his family’s resources and the loan, and was in his name. There had been no discussion or agreement between husband . .
Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Cited – 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 – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Cited – Richards v Wood CA 27-Feb-2014
The defendants had purchased their council house with financial asistance from their son, the claimant. He now asserted that a trust existed in the property in his favour.
Held: ‘unless there is a secure tenancy the statutory right to buy . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 13 May 2022; Ref: scu.199514

Re Biddencare Ltd: ChD 1994

The court set out the principles applicable on making a Beddoe application. The court should consider the strength of the case, the likely costs order in the eventual proceedings, and the justice of the application itself.

Judges:

Mary Arden QC

Citations:

[1994] 2 BCLC 160

Citing:

Cited – In re Beddoe, Downes v Cottam CA 1893
In case of doubt as to the desirability of the intended proceedings (whether as plaintiff or defendant), trustees may apply to the court for directions. This will protect the trustees from adverse costs orders. If given leave to sue or defend by the . .

Cited by:

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

Trusts

Updated: 13 May 2022; Ref: scu.198266

Beckford v Wade: PC 1805

(Jamaica) The board was concerned with the application of the English statutes of limitation, which were held to apply in Jamaica subject to a Jamaican statute excepting (among other people) trustees. Sir William Grant MR said: ‘The question then is, what the true construction of the Act is in this particular: whether it meant only actual and express trusts, as between cestui que trusts and trustees properly so called, upon which length of time ought to have no effect: or whether it intended to leave open to perpetual litigation every equitable question relative to real property… It is certainly true, that no time bars a direct trust, as between cestui que trust and trustee. But if it is meant to be asserted that a court of equity allows a man to make out a case of constructive trust at any distance of time, after the facts and circumstances happened, out of which it arises, I am not aware that there is any ground for a doctrine, so fatal to the security of property as that would be.’

Judges:

Sir William Grant MR

Citations:

(1805) 17 Ves Jun 87, [1805] EngR 116, (1805) 17 Ves Jun 87, (1805) 34 ER 34

Links:

Commonlii

Jurisdiction:

Commonwealth

Cited by:

Cited – Williams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 13 May 2022; Ref: scu.196007

Pallant v Morgan: ChD 1952

The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed formula, the details of which were to be agreed later. The defendant’s agent was successful, but when the parties failed to agree on the details of division the defendant retained the whole of the land for himself.
Held: Although the agreement was incomplete in its detail and too uncertain to be specifically enforceable, the defendant held the land on trust for himself and the plaintiff jointly, since his agent had made the bid on behalf of himself and the plaintiff’s agent on the basis of an agreement for division and it would amount to sanctioning a fraud on the defendant’s part to allow him to retain it.
Harman J said: ‘The plaintiff and the defendant have failed to agree on a division, and the court cannot compel them to agree. The best it can do is to decree that the property is held by the defendant for himself and the plaintiff jointly, and if they still fail to agree on a division the property must be resold, either party being at liberty to bid, and the proceeds of sale divided equally after repaying to the defendant the andpound;1,000 which he paid.’

Judges:

Harman J

Citations:

[1953] Ch 43, [1952] 2 All ER 951

Jurisdiction:

England and Wales

Cited by:

Examined – Banner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
Cited – Thames Cruises Limited v George Wheeler Launches Limited, Kingwood Launches Limited ChD 16-Dec-2003
The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .
Cited – London and Regional Investments Ltd v TBI Plc and Others CA 22-Mar-2002
TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Cited – 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. . .
Cited – Sainsbury’s Supermarkets Ltd v Olympia Homes Limited, Hughes etc ChD 17-Jun-2005
The claimant sought rectification of the land register. In a development deal, an option agreement had not been registered, and the land sold on. The land was required to allow the building of a roundabout necessary for the intended store. An . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd and Another CA 16-Nov-2005
The defendant had brought in the claimant in order to assist in satisfying its own obligations under a lease. The joint venture was not recorded in a formal agreement. The appellant asserted that a constructive trust had been created. The judge had . .
Cited – Clarke and Another v Corless and Another ChD 8-Jul-2009
The parties disputed whether one could retain for his own benefit land on an estate reserved for an estate road. A trust was claimed under Pallant saying that the parties had made an informal agreement before the property was purchased.
Held: . .
Cited – Clarke and Another v Corless and Another CA 31-Mar-2010
The claimants appealed against refusal of a declaration that a neighbouring access road and land was held on a constructive trust. They said that an agreement bewteeen the parties should have been effective to impose a trust on the defendants. The . .
Cited – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .
Cited – Benedetti and Another v Sawiris and Others ChD 15-Jun-2009
The claimant sought payment for his services to the defendants for his work in facilitating a substantial buy out of an Italian energy company.
Held: The claim succeeded on a quantum meruit basis to the extent of 75m euros but not otherwise. . .
Cited – Generator Developments Ltd v Lidl UK Gmbh CA 8-Mar-2018
Generator appealed from a refusal of an equitable interest in land acquired by the responent . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 13 May 2022; Ref: scu.195993

Warman International Ltd v Dwyer: 1995

(High Court of Australia) A fiduciary diverted a business in breach of his fiduciary duty.
Held: ‘The outcome in cases of this kind will depend upon a number of factors. They include the nature of the property, the relevant powers and obligations of the fiduciary and the relationship between the profit made and the powers and obligations of the fiduciary. Thus, according to the rule in Keech v. Sanford, a trustee of a tenancy who obtains for himself the renewal of a lease holds the new lease as a constructive trustee, even though the landlord is unwilling to grant it to the trust . . A similar approach will be adopted in a case in which a fiduciary acquires for himself a specific asset which falls within the scope and ambit of his fiduciary responsibilities, even if the asset is acquired by means of the skill and expertise of the fiduciary and would not otherwise have been available to the person to whom the fiduciary duty is owed. But a distinction should be drawn between cases in which a specific asset is acquired and cases in which a business is acquired and operated. Such a distinction was drawn by Upjohn J in In re Jarvis (decd) in the context of considering a defence of laches, acquiescence and delay. However, in our view, the distinction is also relevant in the context of the fiduciary’s liability to account for profits.’ Their Honours continued: ‘In the case of a business it may well be inappropriate and inequitable to compel the errant fiduciary to account for the whole of the profit of his conduct of the business or his exploitation of the principal’s goodwill over an indefinite period of time. In such a case, it may be appropriate to allow the fiduciary a proportion of the profits, depending upon the particular circumstances. That may well be the case when it appears that a significant proportion of an increase in profits has been generated by the skill, efforts, property and resources of the fiduciary, the capital which he has introduced and the risks he has taken, so long as they are not risks to which the principal’s property has been exposed. Then it may be said that the relevant proportion of the increased profits is not the product or consequence of the plaintiff’s property but the product of the fiduciary’s skill, efforts, property and resources. This is not to say that the liability of a fiduciary to account should be governed by the doctrine of unjust enrichment, though that doctrine may well have a useful part to play; it is simply to say that the stringent rule requiring a fiduciary to account for profits can be carried to extremes and … in cases outside the realm of specific assets the liability of the fiduciary should not be transformed into a vehicle for the unjust enrichment to the Plaintiff’.

Citations:

[1995] 128 ALR 201

Jurisdiction:

Australia

Citing:

Cited – Keech v Sandford ChD 1726
Trustee’s Renewed Lease also Within Trust
A landlord refused to renew a lease to a trustee for the benefit of a minor. The trustee then took a new lease for his own benefit. The new lease had not formed part of the original trust property; the minor could not have acquired the new lease . .

Cited by:

Cited – Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
Cited – 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 – Imageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 13 May 2022; Ref: scu.192213

Re Deans: 1954

A Probate Judge is not considered to be a trustee.

Citations:

[1954] 1 WLR 332

Jurisdiction:

England and Wales

Cited by:

Mentioned – Earnshaw and Others v Hartley CA 31-Mar-1999
An administrator de son tort, who was also a beneficiary, held the estate property on trust, and so could not establish adverse possession against the estate during the period of trusteeship. He held a sufficient interest in the assets already. A . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 13 May 2022; Ref: scu.190223

Sharpe Re, Ex parte Trustee of the Bankrupt v Sharpe: ChD 30 Jul 1979

A couple lived in a maisonette with their aunt. The property had been purchased in the name of the husband but the aunt had contributed a partial sum towards the purchase price, while the rest of the amount was raised by way of a mortgage. The couple subsequently went bankrupt and the aunt claimed to be entitled to a proprietary interest in the maisonette by means of a resulting trust presumed from her contribution to the purchase price.
Held: The money had in fact been advanced by way of a loan with the intention that it be repaid. She was, therefore, not entitled to any share of the equitable interest of the property. Monies advanced by way of loan are not, on this basis alone to be treated as contributions to the purchase price of property so that the lender acquires a beneficial interest in that property as a result.
A constructive trust will be treated as coming into existence at the time of the conduct which gives rise to the trust.
Browne-Wilkinson J said: ‘I will first consider whether she has established an equitable interest in the property and its proceeds of sale by virtue of having provided the bulk of the purchase money, that is to say, has she an interest under a resulting trust? I have no doubt that she has not established any such interest. It is clear that the parties never worked out in any detail what was the legal relationship between them, but no one has suggested that Mrs. Johnson advanced the money to the debtor otherwise than by way of gift or loan. In his public examination, the debtor suggested that the monies were a gift, but I find as a fact that the monies were advanced by way of loan.’

Judges:

Browne-Wilkinson J

Citations:

[1980] 1 WLR 219, (1980) 39 P and CR 459, [1980] 1 All ER 190

Jurisdiction:

England and Wales

Cited by:

Cited – Tackaberry and Another v Hollis and others ChD 13-Nov-2007
A house had been purchased in 1982 by one member of a large family. Other family members now disputed whether the land was held in trust for them. A constructive trust was asserted.
Held: The claimants had failed to establish that a . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Land, Trusts

Updated: 12 May 2022; Ref: scu.190151

Martin v Martin: 1987

A property was bought by parties as ‘beneficial joint tenants in equal shares’.
Held: The words ‘in equal shares’ had the effect of severing any joint tenancy created by the first words of the phrase. The law would apply the first of two mutually inconsistent provisions. That created the joint tenancy. The words however continued, and the last words severed the joint tenancy just created. Millett J said: ‘where there are two inconsistent provisions in a deed which cannot be reconciled, they are to be treated as if they were contained in separate deeds executed by the same parties, one after the other, and in the same order in which the two inconsistent provisions are to be found in the deed. That, of course, explains the difference in treatment between a deed and a will; for in the case of two inconsistent wills made by the same testator, the later revokes the former and prevails, whereas in the case of two inconsistent deeds the result will depend on whether the grantor had put it out of his power by the first deed to bring about the consequences purported to be effected by the second.’

Judges:

Millett J

Citations:

[1987] P and CR 238

Jurisdiction:

England and Wales

Citing:

Explained – Slingsby’s Case 1587
Where two inconsistent provisions in a deed cannot be reconciled, the earlier provision prevails over the later. . .

Cited by:

Cited – Taylor v Rive Droite Music Ltd ChD 6-Jul-2004
The claimant music producer and songwriter had entered into a publishers agreement with the defendant, agreeing to work for it. He now sought to be free to work for another company. The factual background was unclear, and the contract documentation . .
Cited – Slater v Simm ChD 27-Apr-2007
The deceased and her partner did not marry but owned three properties together. They could not agree on the interpretation of the documents setting out their interests, and whether they had been varied.
Held: The court set out the various . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 12 May 2022; Ref: scu.190026

Hammond v Mitchell: 1992

The court described the process of deducing what were the intentions of the parties when purchasing property: ‘The primary emphasis accorded by the law in cases of this kind to express discussions between the parties (‘however imperfectly remembered and however imprecise their terms’) means that the tenderest exchanges of a common law courtship may assume an unforeseen significance many years later when they are brought under equity’s microscope and subjected to an analysis under which many thousands of pounds of value may be liable to turn on fine questions as to whether the relevant words were spoken in earnest or in dalliance and with or without representational intent.’

Judges:

Waite J

Citations:

[1992] 2 All ER 109, [1991] 1 WLR 1127

Jurisdiction:

England and Wales

Family, Trusts

Updated: 12 May 2022; Ref: scu.189962

Jones v Challenger: CA 1960

The test under the section was whether it was inequitable to make the order for sale where one of the joint beneficiaries, who in that case were ex-husband and wife, wished to realise their investment in the property.
Held: Referring to the statement of principle in in re Mayo, described as ‘a simple uncomplicated case of a trust for sale of freehold property, where the beneficiaries were brother and sister, and where there was no suggestion that either of them were intended or even wished to occupy the property . . But this simple principle cannot prevail where the trust itself in the circumstances in which it was made show that there was a secondary or collateral object besides that of sale . . it is at any rate wrong and inequitable for one of the parties to the trust to invoke the letter of the trust in order to defeat one of its purposes, whether that purpose be written or unwritten, and the court will not permit it.’

Judges:

Devlin LJ

Citations:

[1960] 1 All ER 785, [1961] 1 QB 176

Statutes:

Law of Property Act 1925 30

Jurisdiction:

England and Wales

Citing:

Cited – In re Mayo ChD 1943
The court discussed the duty of trustees to sell in the absence of unanimity: ‘The trust for sale will prevail, unless all three trustees agree in exercising the power to postpone.’ . .

Cited by:

Cited – Wilkinson v Chief Adjudication Officer CA 24-Mar-2000
The claimant owned a half share in a property. It was said that this brought her disposable capital above the limit to make a claim. She had inherited it, but had transferred it to her brother in satisfaction of her mother’s wishes. . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 12 May 2022; Ref: scu.189980

Huntingford v Hobbs: CA 1 Mar 1992

The parties lived together in a property transferred to the woman after her divorce. That house was sold and the defendant contributed the capital. There was a joint mortgage, but the plaintiff alone had an income from which to make payments. The plaintiff later contributed the cost of an extension.
Held: The property had been transferred into the joint names of the parties by a transfer which contained no declaration of trust in express terms, but which did include a declaration as to the power of the survivor to give a receipt for capital money arising on a disposition of the land. The primary submission advanced on the appeal was that a transfer in that form was to be construed as a declaration by the parties that they held the property for themselves as joint tenants. There was sufficient evidence of a common intention that the property should be shared. The plaintiff’s assumption of responsibility for all the mortgage repayments amounted to a capital cash contribution. The property was to be treated as having been acquired by the parties as a joint venture, and held in proportion to the contributions, not just the actual capital contributions. The declaration was insufficient to amount to an express declaration of trust.

Judges:

Lord Justice Dillon, Lord Justice Steyn and Sir Christopher Slade

Citations:

[1993] 1 FLR 736

Jurisdiction:

England and Wales

Citing:

Cited – Springette v Defoe CA 1-Mar-1992
Property was purchased in joint names, but with no express declaration of the beneficial interests. The couple had lived together for a short time as joint tenants of the local authority. They were able to purchase at a substantial discount from the . .

Cited by:

Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – Evans v Hayward CA 1-Jun-1992
The property had been bought in joint names at a discounted price under a ‘right to buy’ conferred by the Housing Act 1985; but where the discount was substantially attributable to the plaintiff’s former occupation as local authority tenant. The . .
Cited – Curley v Parkes CA 25-Oct-2004
The claimant sought leave to an appeal an order dismissing his claim for an interest in the property owned by his former partner and in which they had co-habited. This was the second such house. He sought an interest under a resulting trust, having . .
Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 12 May 2022; Ref: scu.189974

Jones v Westcomb: 1711

A gift on a contingency which does not occur nevertheless takes effect on the happening of an event which is a fortiori.

Citations:

(1711) Prec Ch 316

Jurisdiction:

England and Wales

Cited by:

Applied – Brock v Bradley 1864
A legacy to a single woman if she survives her husband takes effect if she never marries. . .
Cited – Venables and others v Hornby (Her Majesty’s Inspector of Taxes) HL 4-Dec-2003
The company director taxpayer had retired from his company but stayed on as an unpaid non-executive director. The trust deed for the company’s pension scheme provided for payments to be made to an employee. The director sought relief from payment of . .
Applied – Murray v Jones 1813
A gift over in the event of a prior legatee having only one child takes effect if the prior legatee has no child. . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 12 May 2022; Ref: scu.189911

Island Holdings Ltd v Birchington Engineering Co Ltd: 7 Jul 1981

Two prospectively separate purchasers in a later ‘subject to contract’ arrangement between them had replaced their earlier concluded agreement as to how a property, if acquired, would be dealt with.
Held: Effect was to be given to the agreement by way of constructive trust, not to the ‘subject to contract’ arrangement but simply to the notion that the two parties should be obliged to share.

Judges:

Goulding J

Citations:

Unreported, 7 July 1981

Cited by:

Cited – Banner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
Cited – Gonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
Cited – Thames Cruises Limited v George Wheeler Launches Limited, Kingwood Launches Limited ChD 16-Dec-2003
The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Trusts

Updated: 12 May 2022; Ref: scu.188287

Re a Policy No 6402 of the Scottish Equitable Life Assurance Society: 1902

Mr Sanderson effected insurance on his own life ‘for the behoof’ of his sister-in-law, Miss Stiles. The policy moneys were payable to Miss Stiles or her personal representatives but the premiums were paid throughout by Mr Sanderson. The personal representatives of Mr Sanderson claimed the policy moneys from those of Miss Stiles to whom they had been paid.
Held: ‘Now, in the present case a policy was taken out by Mr. Sanderson a great many years ago, and the name of Miss Stiles appears in the policy as the person to whom the money is to be paid. The policy was never handed to her, and she is now dead, and the premiums were always paid, and were paid for many years after her death, by Sanderson. That, really, is a case of a man taking a policy out in the name of another, that other person being a sister of his wife, and, therefore not standing in any relation to him ‘that would meet the presumption,’ as Lord Eldon expressed it. It comes really to this: a purchase by one in the name of another with no other circumstances at all proved. Therefore, in my opinion, although the legal personal representative of the lady in this case would be the person entitled to receive the money at law and to give a receipt for it, in equity the money belongs to the legal personal representatives of Mr. Sanderson, who took out the policy.

Judges:

Joyce J

Citations:

[1902] 1 Ch 282

Jurisdiction:

England and Wales

Citing:

Cited – Dyer v Dyer 27-Nov-1988
Where property is purchased by one person in the name of another there is a presumption that a resulting trust is created: ‘The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold . .

Cited by:

Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Lists of cited by and citing cases may be incomplete.

Insurance, Trusts

Updated: 12 May 2022; Ref: scu.187414

Murray v Murray’s Tutor: 1915

The date of a mortis causa trust disposition and settlement for the purposes of section 48 of the 1848 Act was the date of the truster’s death and not the date of its execution.

Citations:

1915 1 SLT 34

Statutes:

Entail Amendment (Scotland) Act 1848 47

Cited by:

Cited – Earl of Balfour v Keeper of the Registers of Scotland and Others HL 6-Nov-2002
The applicant sought a declaration that he was the owner of land by virtue of the 1848 Act, claiming that a series of grants of liferent were ineffective to restrict the title transferred.
Held: Miller’s Trustees was to be applied in to the . .
Disapproved – Lord Binning, Petitioner 1984
. .
Lists of cited by and citing cases may be incomplete.

Scotland, Trusts

Updated: 12 May 2022; Ref: scu.186367

Middleton, Petitioner: 1929

Section 47 applied to any trust deed dated after 1 August 1848.

Judges:

Lord Blackburn

Citations:

1929 SC 394

Statutes:

Entail Amendment (Scotland) Act 1848 47

Cited by:

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

Scotland, Trusts

Updated: 12 May 2022; Ref: scu.186365

Lady Hood of Avalon v Mackinnon: 1909

Lady Hood made an appointment in favour of her elder daughter, in order to place her in the same position as her younger daughter to whom she had already made large appointments. But in doing so she (and her solicitor) had forgotten that she had, several years before, made a large appointment to the elder daughter on her marriage.
Held: the appointment to the elder daughter would be rescinded because Lady Hood, intending only to bring about equality between her daughters, was labouring under a mistake, since the effect of the appointment ‘was to bring about that which Lady Hood never intended and never contemplated.’

Judges:

Eve J

Citations:

[1909] 1 Ch 476

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 – Fender (Administrator of FG Collier and Sons Ltd) v National Westminster Bank Plc ChD 26-Sep-2008
The administrator sought declarations as to whether to treat the bank as a secured or unsecured creditor.
Held: The court directed the Administrator to recognise the Bank as a secured creditor, as if the Deed of Release had never been . .
Cited – Pitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 12 May 2022; Ref: scu.184587

Walker and others v Stones and others: CA 19 Jul 2000

Beneficiaries under a trust sought damages from a solicitor trustee, and the firm of which he was a partner.
Held: Where a trustee acted in breach of trust in a claimed belief that he was acting in the interests of the beneficiaries, but no reasonable trustee in his place could have that belief, then an allegation against him of dishonesty should proceed. A trusteeship is not part of the normal duties of a partner of a firm, and the firm is not vicariously liable for the acts of a partner in such trusts. The court rejected the ‘Robin Hood’ test of dishonesty (a person is only regarded as dishonest if he transgresses his own standard of honesty, even if that standard is contrary to that of reasonable and honest people) saying: ‘A person may in some cases act dishonestly, according to the ordinary use of language, even though he genuinely believes that his action is morally justified. The penniless thief, for example, who picks the pocket of the multi-millionaire is dishonest even though he genuinely considers that theft is morally justified as a fair redistribution of wealth and that he is not therefore being dishonest.’
‘a claimant is entitled to recover damages where:
(a) the claimant can establish that the defendant’s conduct has constituted a breach of some legal duty owed to him personally (whether under the law of contract, torts, trusts or any other branch of the law) AND
(b) on its assessment of the facts, the Court is satisfied that such breach of duty has caused him personal loss, separate and distinct from any loss that may have been occasioned to any corporate body in which he may be financially interested.
I further conclude that, if these two conditions are satisfied, the mere fact that the defendant’s conduct may also have given rise to a cause of action at the suit of a company in which the claimant is financially interested (whether directly as a shareholder or indirectly as, for example, a beneficiary under a trust) will not deprive the plaintiff of his cause of action; in such a case, a plea of double jeopardy will not avail the defendant.’

Judges:

Sir Christopher Slade

Citations:

Times 26-Sep-2000, Gazette 14-Sep-2000, [2000] Lloyds Rep PN 864

Jurisdiction:

England and Wales

Cited by:

Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Company, Legal Professions, Trusts, Equity, Vicarious Liability

Updated: 11 May 2022; Ref: scu.90254

Hawkesley v May: 1956

The trustees under a deed of settlement had a duty to inform a beneficiary, on his attaining 21, that he had an interest in the capital and income of the funds of the trust. Havers J said: ‘A fortiori, if the trustees did not hand over to the plaintiff on attaining 21 income to which he was entitled, it would be their duty to explain to him that he was entitled to call for and have the interest paid to him’.

Judges:

Havers J

Citations:

[1956] 1 QB 304

Trusts

Updated: 11 May 2022; Ref: scu.554412

Magnus v Queensland National Bank: 1888

A custodial bank was liable to restore trust funds merely because it dissipated the trust funds in a manner which was not authorised. Lord Halsbury LC said: ‘we are not at liberty to speculate whether the same result might not have followed whether the bank had been guilty of that default or not. The bank have in fact been guilty of default. As a matter of fact they concurred in the money being handed to a person who had no authority, in my view of the facts, to receive it.’

Judges:

Lord Halsbury LC

Citations:

(1888) 37 Ch D

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts

Updated: 11 May 2022; Ref: scu.553781

Bank of New Zealand v New Zealand Guardian Trust Co Ltd: 1999

New Zealand Court of Appeal – Gault J said: ‘Recent cases show a trend in favour of analysis by reference to the scope of the duty, and enquire as to the risks against which there was a duty to protect the plaintiff. In South Australia Asset Management Corporation v York Montague Ltd [[1996] UKHL 10; 1997] AC 191 the House of Lords approached in this way a case of breach of a contractual duty of care while noting that the concurrent duty in tort was of the same scope. In the speech of Lord Hoffmann, with whom the other members agreed, it was said that the real question in such a case is the kind of loss in respect of which the duty is owed. To some extent this is merely to restate the question asking what losses is it reasonable that the law should require the wrongdoer to compensate, but it is a helpful analytical approach as illustrated in the instructive treatment in Todd, The Law of Torts (2ed 1997) para 20.3.’
Tipping J observed that while historically the law has tended to place emphasis on the legal characterisation of the relationship between the parties in delineating the remedies available for breach of an obligation, the nature of the duty which has been breached can often be more important, when considering issues of causation and remoteness, than the classification or historical source of the obligation. He identified three broad categories of breach by a trustee. First, there are breaches of duty leading directly to damage or to loss of trust property. Secondly, there are breaches involving an element of infidelity. Thirdly, there are breaches involving a lack of appropriate skill and care. He continued: ‘In the first kind of case the allegation is that a breach of duty by a trustee has directly caused loss of or damage to the trust property. The relief sought by the beneficiary is usually in such circumstances of a restitutionary kind. The trustee is asked to restore the trust estate, either in specie or by value. The policy of the law in these circumstances is generally to hold the trustee responsible if, but for the breach, the loss or damage would not have occurred. This approach is designed to encourage trustees to observe to the full their duties in relation to trust property by imposing on them a stringent concept of causation [ie a test by which a ‘but for’ connection is sufficient]. Questions of foreseeability and remoteness do not come into such an assessment.’

Judges:

Gault J, Tipping J

Citations:

[1999] 1 NZLR 664

Jurisdiction:

England and Wales

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts, Damages

Updated: 11 May 2022; Ref: scu.554201

Ex parte Adamson; In re Collie: CA 1878

The Court of Chancery never entertained a suit for damages occasioned by fraudulent conduct or for breach of trust, and that the suit was always for ‘an equitable debt, or liability in the nature of a debt’.

Judges:

James and Baggallay LJJ

Citations:

(1878) 8 Ch D 807

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 11 May 2022; Ref: scu.554202

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 at the time that he should disclose them to the claimant.’

Judges:

Morland J

Citations:

[2001] Lloyd’s Rep PN 649

Jurisdiction:

England and Wales

Citing:

Cited – Mothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Trusts

Updated: 11 May 2022; Ref: scu.471576

Jaenicke v Schulz: 1924

Citations:

[1924] 4 DLR 488

Cited by:

Cited – Ketteringham and Another v Hardy ChD 3-Feb-2011
Two partners had together bought several properties for development, and now disputed the interests in one of them. One partneer had dies, and the refusal of development permission and the fall in property values left the land in negative equity. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts

Updated: 11 May 2022; Ref: scu.428469

In Re Rhodesia Goldfields Ltd: ChD 1910

Partridge, a director of the company who held some of its debenture stock, was facing a serious misfeasance claim which had not yet been resolved. Set-off was therefore not available.
Held: Payment of what was due to Partridge and his assignees was therefore deferred until the claim against him was resolved.
Swinfen Eady J said: ‘it would be a strange travesty of equity to hold that in distributing the fund Partridge was entitled to be paid at once all that was due to him out of the company’s money, and subsequently to find, after it had been established that he owed money to the fund, that the amount could not be recovered from him.’
He went on to discuss the rule in Cerry v Boultbee, saying: ‘The rule is of general application that where an estate is being administered by the Court, or where a fund is being distributed, a party cannot take anything out of the fund until he has made good what he owes to the fund . . a person entitled to participate in and bound to contribute to the same fund cannot receive the benefit without discharging the obligation.’

Judges:

Swinfen Eady J

Citations:

[1910] 1 Ch 239

Jurisdiction:

England and Wales

Citing:

Applied – Cherry v Boultbee HL 22-Nov-1839
B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid.
Held: The liability to pay the debt and the right to receive the legacy had never tested . .

Cited by:

Cited – Brazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .
Cited – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.

Trusts, Insolvency

Updated: 11 May 2022; Ref: scu.416575

Talbot v Marshfield: 15 Jun 1865

Trustees took counsel’s opinion as to whether they should exercise a discretionary power to advance part of their trust fund for the benefit of some of the cestuis que trust: and others of the cestuis que trust having filed a bill to restrain them from exercising such discretion, they took a second opinion as to their defence in the suit.
Upon summons for production by the Plaintiffs :
Held, that, the first case and opinion having reference to the dealings with the trust estate, all the cestuis que trust had a right to inspection, and the Court ordered them to be produced ; but that the second case and opinion being after suit instituted, the Plaintiffs had no right to production.

Citations:

[1865] EngR 589, (1865) 2 Dr and Sm 549, (1865) 62 ER 728

Links:

Commonlii

Citing:

See Also – Talbot v Marshfield 17-Nov-1864
Payment into Curt. Discretionary Power in Trustees Over Fund, – Although the mere existence of a discretionary power in trustees over a fund affords no reason why the Court should not order payment of the fund into Court, unless such payment into . .

Cited by:

Cited – Dawson-Damer and Others v Taylor Wessing Llp and Others ChD 6-Aug-2015
The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in . .
Lists of cited by and citing cases may be incomplete.

Trusts, Litigation Practice, Legal Professions

Updated: 11 May 2022; Ref: scu.281501

McHardy and Sons (A Firm) v Warren and Another: CA 8 Apr 1994

A gift of the deposit to a couple can create an equal interest in the home for the spouses though the house is purchased in one name only. Lord Justice Dillon said: ‘To my mind it is irresistible conclusion that where a parent pays the deposit, either directly to the solicitors or to the bride and groom, it matters not which, on the purchase of their first matrimonial home, it is the intention of all three of them that the bride and groom should have equal interests in the matrimonial home, not interests measured by reference to the percentage half the deposit [bears] to the full price.’

Judges:

Lord Justice Dillon

Citations:

Times 08-Apr-1994, [1994] 2 FLR 338

Jurisdiction:

England and Wales

Cited by:

Cited – Midland Bank v Cooke and Another CA 13-Jul-1995
Equal equitable interest inferrable without proof
The bank sought to enforce a charge given by the husband to secure a business loan. The property was purchased from the husband’s and his family’s resources and the loan, and was in his name. There had been no discussion or agreement between husband . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 10 May 2022; Ref: scu.83547

Houghton and Others v Fayers and Another: CA 9 Feb 2000

A party could be held liable as a constructive trustee in respect of moneys received in breach of trust, even if there was no finding of actual dishonesty against him. The requirements were to show the payment in breach of a fiduciary duty, the traceability of the funds, and the knowledge of the recipient that the funds were paid to him in breach of a fiduciary duty.

Citations:

Times 09-Feb-2000

Jurisdiction:

England and Wales

Trusts

Updated: 10 May 2022; Ref: scu.81486

Fuller v Evans and Others: ChD 27 Oct 1999

A settlor created a trust in favour of his wife and children with provision preventing them from making any disposition which would benefit him. The parties were divorced and he was ordered to pay maintenance to the children. The Trustees were concerned that in making payments to the children they would be reducing his liability.
Held: The trustees had to take that into account, but that need not stop a proper decision to fulfil the duties under the trust.

Citations:

Times 10-Nov-1999, Gazette 27-Oct-1999

Jurisdiction:

England and Wales

Trusts

Updated: 10 May 2022; Ref: scu.80705

Adam and Company International Trustees Ltd and Others v Theodore Goddard (A firm): ChD 17 Mar 2000

It was not possible for two trustees to retire, and be replaced by and leaving only one trustee, not being a trust corporation. The two trustees were not therefore discharged from the trust, and the solicitors who had advised them in the exercise had been negligent. A discharge of the second trustee could only be obtained via section 39.

Citations:

Times 17-Mar-2000, Gazette 30-Mar-2000

Statutes:

Trustee Act 1925 36 39

Jurisdiction:

England and Wales

Trusts

Updated: 10 May 2022; Ref: scu.77634

Yeatman v Yeatman: 1877

An action was brought by a residuary legatee against her mother-in-law’s executors and another member of the family, who it was alleged, had failed to account for partnership monies to the mother-in-law.
Held: A beneficiary of a trust could not sue in the name of the trustee merely because the trustee had refused to sue, but if in a case where the trustee refused to sue the court was satisfied that it would have given liberty to the trustee to bring proceedings even though there was no certainty that the proceedings would be successful, these would in general be special circumstances in which the beneficiary could sue in his own name.

Judges:

Hall VC

Citations:

(1877) 7 Ch D 201

Cited by:

Cited – Roberts v Gill and Co and Another CA 15-Jul-2008
The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Trusts

Updated: 10 May 2022; Ref: scu.279800

In re Bennett, Jones v Bennett: CA 1896

The deceased’s estate held mainly an unsecured interest-bearing loan to a firm of which he had been a partner. On his retirement the loan was repayable on demand if conditions for the continued solvency of the firm were not met. The court was asked whether the audit and stock-taking costs – which the executor and trustee deemed necessary to enable him to determine whether the conditions had been observed or the loan had become repayable – were to be charged against capital or income. It was held at first instance that expenses already incurred in connection with the first audit and stock-taking should be borne by capital; but that future expenses of that nature should be charged against income.
Held: The appeal succeeded.
Lord Justice Lindley said: ‘Why is this expense to be thrown upon the tenant for life? For whose benefit is it incurred? It is really for the benefit of the whole estate, though the practical effect of throwing it upon the whole estate will be that the tenant for life will lose the income of the sums expended.’
Lord Justice Kay said: ‘Then comes the question out of what should the expense of the examination come – out of capital or out of income? In the first place the object of the provisions in the agreement is to ensure repayment of the capital . . Surely [the provision for examination] is a provision which the testator deliberately introduced into this agreement for the purpose of making himself safe as to the repayment of this capital which he had not charged in terms upon the capital of the business. The expense is one in which the persons entitled to the capital ought to share: why then should it all be thrown upon the tenant for life?’
A L Smith LJ said: ‘Here the payment is one which the trustee, for the benefit of the tenant for life as well as of the remaindermen, may properly incur in order to see whether the 15,000l., of which the tenant for life receives the present income, and the persons entitled in remainder take the ultimate benefit, is safe or not. It is quite clear, in my judgment that the expenses of these audits are costs, charges and expenses incurred for the benefit of the whole estate, and therefore ought to come out of capital and not out of income.’

Judges:

Lindley LJ, Kay LJ, A L Smith LJ

Citations:

[1896] 1 Ch 778

Cited by:

Cited – HM Revenue and Customs v Trustees of the Peter Clay Discretionary Trust CA 19-Dec-2008
The court was asked whether the Commissioners had been correct to disallow in a closure notice, the attribution in part to income in the year 2000-01 of expenses incurred by the trustees of a United Kingdom resident discretionary trust. The expenses . .
Approved – Carver v Duncan HL 1985
The court considered whether expenses, premiums paid in respect of life assurance policies, and the fees of professional investment managers, were properly to be set against the capital or income of a trust.
Held: Lord Templeman said: . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Trusts

Updated: 10 May 2022; Ref: scu.279007

Caffrey v Darby: 1801

A fiduciary has a strict duty to account; equity imposes stringent liability on a fiduciary as a deterrent – pour encourager les autres. Lord Eldon LC said: ‘It would be very dangerous, though no fraud could be imputed to the trustees, and no kind of interest or benefit to themselves was looked to, to lay down this principle; that trustees might without any responsibility act, as these did: in eight years, within which time the whole money ought to have been paid, receiving only andpound;250; and taking no step as to the remainder. It would be an encouragement to bad motives; and it may be impossible to detect undue motives. If we get the length of neglect in not recovering this money by taking possession of the property, will they be relieved from that by the circumstance, that the loss has ultimately happened by something, that is not a direct and immediate consequence of their negligence: viz. the decision of a doubtful question of law? Even supposing they are right in saying, this was a very doubtful question, and they could not look to the possibility of its being so decided, yet, if they have been already guilty of negligence, they must be responsible for any loss in any way to that property: for whatever may be the immediate cause, the property would not have been in a situation to sustain that loss, if it had not been for their negligence. If they had taken possession of the property, it would not have been in his possession. If the loss had happened by fire, lightning, or any other accident, that would not be an excuse for them, if guilty of previous negligence. That was their fault.’

Judges:

Lord Eldon LC

Citations:

31 ER 1159, (1801) 6 Ves 488, [1775-1802] All ER Rep 507, [1801] EngR 484, (1801) 6 Ves Jun 488, (1801) 31 ER 1159

Links:

Commonlii

Citing:

See Also – Caffrey v Darby 1789
As a general rule, executors must get in the property of the testator by all possible remedies. . .

Cited by:

Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 10 May 2022; Ref: scu.276921

Re Clore’s Settlement Trusts: ChD 1966

A 21 year old beneficiary of a substantial trust fund requested the trustees to apply for his benefit a sum (equal to about one-seventh of the fund) to a family charitable foundation. He would be entitled to the capital of the fund on attaining 30, in default of which the capital went to his issue if any and subject thereto to his sister and her family in trust.
Held: It was open to the trustees to make the advance: i) the improvement of the material situation of the beneficiary is not confined to his direct financial situation but could include the discharge of certain moral or social obligations particularly in relation to provision for family and dependants. And ii) the court has always recognized that a wealthy person has a moral obligation to make appropriate charitable donations and that: ‘a beneficiary under a settlement may indeed in many cases be reasonably entitled to regard himself as under a moral obligation to make donations towards charity. The nature and amount of those donations must depend upon all the circumstances, including the position in life of the beneficiary, the amount of the fund and the amount of his other resources. Once that proposition is accepted, it seems to me that it must lie within the scope of a power such as that contained in clause 8 of this settlement for the trustees to raise capital for the purpose of relieving the beneficiary of his moral obligation towards whatever charity he may have in mind. If the obligation is not to be met out of the capital of the trust fund, he would have to meet it out of his own pocket, if at all. Accordingly, the discharge of the obligation out of the capital of the trust fund does improve his material situation. The precise amount which the trustees can in any given case apply for this purpose must depend, I think, on the particular circumstances, and in this respect quantum is a necessary ingredient in the proper exercise of the power. It is difficult, for example, to see how the trustees under a power such as that in clause 8 could validly pay over the whole authorized two-thirds to charitable purposes. On the other hand, it is certainly not for the court to say precisely where the line is to be drawn.’ iii) rejecting the argument that direct material advantage could only be shown if, for example, the beneficiary was under such pressure, public or otherwise, that it would be detrimental to his material position if the donation were not made, that that was: ‘too narrow a view of what represents a benefit in a material sense to the beneficiary. Once the beneficiary regards the payment as a moral obligation, then it may be for his benefit to be relieved of it.’ Earlier he said: ‘Once he recognises this obligation the trustees may properly regard it as improving his material situation to discharge the obligation out of the trust fund, and as I have said, the proportion they propose to apply for this purpose is not excessive.’

Judges:

Pennycuick J

Citations:

[1966] 1 WLR 955, [1966] 2 All ER 272

Jurisdiction:

England and Wales

Cited by:

Cited – X v A and others ChD 29-Nov-2005
The wife sought confirmation that the trustees of a discretionary marriage settlement created by her husband could release sums which she intended to pay out for charitable purposes.
Held: The trust required money to be released for the . .
Cited – Jones and others v Firkin-Flood ChD 17-Oct-2008
The trustees had contracted to sell shares in a private company held within the estate. A family member now claimed that they were held in trust after a settlement of a possible challenge to the will based in lack of testamentary capacity and undue . .
Lists of cited by and citing cases may be incomplete.

Trusts, Charity

Updated: 10 May 2022; Ref: scu.237752

Public Trustee v Cooper: 2001

The court identified two jurisdictions for the court in construing trusts: (1) the jurisdiction to decide questions of construction as to the ambit of trustees’ powers, and (2) the jurisdiction to ‘bless’ a particular transaction proposed by the trustees in relation to which they are not surrendering their discretion to the court.

Judges:

Walker J

Citations:

[2001] WTLR 901

Jurisdiction:

England and Wales

Cited by:

Cited – X v A and others ChD 29-Nov-2005
The wife sought confirmation that the trustees of a discretionary marriage settlement created by her husband could release sums which she intended to pay out for charitable purposes.
Held: The trust required money to be released for the . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 10 May 2022; Ref: scu.237750

Young v Young: 1984

Citations:

[1984] FLR 375

Cited by:

Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 10 May 2022; Ref: scu.230911

Williams v Scott: PC 1900

(New South Wales) The Board was asked whether an abstract of title was good because it appeared from the abstract that there had been a purchase by a trustee without full consent or release from the beneficiaries.
Held: The purchase of trust property by a trustee is not permitted except with the consent of the court or pursuant to an express power: ‘It is important to remember upon whom the onus of proof falls. It ought not to be assumed, in the absence of evidence to the contrary, that the transaction was a proper one, and that the cestui que trusts were informed of all necessary matters. The burthen of proof that the transaction was a righteous one rests upon the trustee, who is bound to produce clear affirmative proof that the parties were at arm’s length; that the cestui que trusts had full information upon all material facts; and that, having this information, they agreed to and adopted what was done.’ and ‘It is clear undisputed law that a trustee for the sale of property cannot himself be the purchaser of it – no person can at the same time fill the two opposite characters of vendor and purchaser.’

Judges:

Sir Ford North

Citations:

[1900] AC 499

Jurisdiction:

Australia

Cited by:

Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 09 May 2022; Ref: scu.223775

Re Hotchkiss Trusts: 1869

‘In this case, if the words of the will had been the same as the words in In re Potter’s Trust, I should, without expressing any opinion of my own, simply have followed the decision of Vice-Chancellor Sir R.Malins in that case; because I do not think it seemly that two branches of a Court of co-ordinate jurisdiction should be found coming to contrary decisions upon similar instruments, and encouraging as it were a race, by inducing persons who wish for one construction to go to one court and those who wish for another construction to go to another. I should simply have affirmed the Vice-Chancellor’s decision, with the intimation of my wish that the whole matter should be brought before a Court of Appeal.’

Judges:

Sir William James V-C

Citations:

(1869) 8 Eq 643

Jurisdiction:

England and Wales

Trusts, Litigation Practice

Updated: 09 May 2022; Ref: scu.191952

Davie v Davies’ Trustees: OHCS 1900

A trust disposition which had confined the pursuer to a liferent for as long as the trustees exercised the discretion which they had been given to retain the capital was struck at by section 48 of the Act.

Judges:

Lord Low

Citations:

(1900) 8 SLT 28

Statutes:

Entail Amendment (Scotland) Act 1848 47

Jurisdiction:

Scotland

Cited by:

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

Trusts

Updated: 09 May 2022; Ref: scu.186366

King v Hutton: CA 1900

‘The most compelling indicator for or against a trusteeship of an agent’s receipts is the nature of the account agreed to be kept by the agent with his principal. If, after each individual transaction or group of related transactions he effects for his principal, he is to pay over the proceeds in his hands – minus any commission payable – then he will ordinarily be a trustee. But where an agent is effecting both sales and purchases for his principal, or is discharging liabilities for his principal out of monies received, and he keeps a running account with periodic settlement dates at which he pays over the balance of account (if any), he will, ordinarily, be a debtor only – the debtor-only conclusion being reinforced if there are present in the accounts (1) set offs, other than for commission, or (2) interest charges on credits and debits’.

Citations:

[1900] 2 QB 504, [1900] 83 LT 68

Jurisdiction:

England and Wales

Cited by:

Cited – Aluminium Industrie Vaassen B V v Romalpa Aluminium Ltd ChD 11-Feb-1975
The plaintiffs sold aluminium to the defendant and by a clause in the contract retained their title in the materials sold until payment was received. The purchaser went into insolvent receivership, and the seller sought recovery of the equipment and . .
Cited – DP Mann and others v Coutts and Co ComC 16-Sep-2003
The claimants were involved in litigation, They took certain steps on the understanding that the respondents had had deposited with them substantial sums in accounts under binding authorities. The bank had written a letter upon which they claim they . .
Lists of cited by and citing cases may be incomplete.

Trusts, Agency

Updated: 08 May 2022; Ref: scu.181239

James Roscoe (Bolton) Ltd v Winder: 1915

A company sold its business under an agreement containing a promise by the purchaser to collect on behalf of the vendor the amount of the book debts owed to it at the date of the agreement. From the sums collected, the purchaser paid andpound;455 into his general bank account, but he failed to account for the money to the vendor and made drawings from the account which reduced it at one stage to andpound;25. He later made payments into the account from an unrelated source, and died with a balance in his account of andpound;358, to which the vendor claimed to be beneficially entitled.
Held: The maximum which the vendor was entitled to trace was andpound;25, representing the lowest sum to which the balance on the account had fallen between the payment of the andpound;455 into the account and the purchaser’s death, on the ground that at that date of the lowest balance the purchaser must have denuded the account of all the trust moneys except to the extent of andpound;25.

Judges:

Sargant J

Citations:

[1915] 1 Ch 62

Jurisdiction:

England and Wales

Trusts

Updated: 08 May 2022; Ref: scu.556804

Midland Bank v Wyatt: ChD 1995

Mr Wyatt settled his family home on trust for the benefit of his wife and daughter, so as to immunise it from any business failure he might suffer. When his business did fail, he sought to protect his house from creditors by relying on the settlement earlier executed, of which his wife was a trustee. It emerged that Mr Wyatt’s wife had had no knowledge of the effect or nature of the declaration she signed as ‘trustee’.
Held: There was a sham, and the declaration of trust was void and could not be enforced.
Where a trustee goes along with a settlor neither knowing nor caring what he or she is signing, this constitutes sufficient intention to create a sham.

Citations:

[1997] 1 BCLC 242, [1995] 1 FLR 697

Jurisdiction:

England and Wales

Trusts

Updated: 08 May 2022; Ref: scu.556769

Re Astor’s Settlement Trusts; Astor v Scholfield: ChD 1952

Roxberg J said: ‘if the purposes are valid trusts, the settlors have retained no beneficial interest and could not initiate [proceedings].’ One cannot generally have a trust without a beneficiary or, at least a person who can move the court to enforce the trust: ‘This seems to me to be good equity and good sense.’

Judges:

Roxberg J

Citations:

[1952] Ch 534, [1952] 1 All ER 1067, [1952] 1 TLR 1003

Jurisdiction:

England and Wales

Trusts

Updated: 08 May 2022; Ref: scu.556770

Williams v Barton: 1927

A trustee, who recommended that his co-trustees use stockbrokers who gave him a commission, held the commission on trust for the trust.

Judges:

Russell J

Citations:

[1927] 2 Ch 9

Jurisdiction:

England and Wales

Cited by:

Cited – FHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 08 May 2022; Ref: scu.551507

In re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research: ChD 1964

Ungoed-Thomas J said: ‘The more serious the allegation the more cogent is the evidence required to overcome the unliklihood of what is alleged and thus to prove it.’

Judges:

Ungoed-Thomas J

Citations:

[1964] 1 WLR 451, [1964] 1 All ER 771

Jurisdiction:

England and Wales

Cited by:

Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – Ali Haider v Syed ChD 19-Dec-2013
It was alleged that the signature on the deceased’s will was a forgery.
Held: Given the serious nature of the allegation of forgery the legal burden of proving that the signature on the Will was forged rested on the Defendant, and cogent proof . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts, Evidence

Updated: 08 May 2022; Ref: scu.519362

In re Bourke’s Will Trusts: ChD 1980

The 1938 will of a testator was at issue. He died in 1943. The trusts included a life interest for the testator’s widow and, on her death without issue (which happened in 1971), residue was given to the testator’s three half-siblings ‘or their heirs and surviving issue’.
Held: The heirs were to be ascertained in accordance with pre-1926 law by virtue of section 132 of the 1925 Act. It was accepted that ‘issue’ (construed to mean children in the context) were to be ascertained in accordance with the law at the date of the testator’s death in 1943 (though it was not suggested that there were any illegitimate children born after 1969 who might have made a claim). Also, the classes of heirs and issue were in each case to be ascertained at the death of each half-sibling (1958 and 1969 respectively), and not at the date of the widow’s death in 1971.

Judges:

Slade J

Citations:

[1980] 1 WLR 539

Statutes:

Law of Property Act 1925 132

Jurisdiction:

England and Wales

Cited by:

Cited – Re Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 08 May 2022; Ref: scu.519436

Re Halstead’s Will Trusts: ChD 1937

The term ‘benefit’ in a trust instrument is to be construed widely. To exercise a power of advancement by settling on an object of the power and his wife and children, property in which he has otherwise only a life interest was an ‘application’.

Judges:

Farwell J

Citations:

[1937] 2 All ER 570

Jurisdiction:

England and Wales

Cited by:

Cited – Barclays Bank Trust Company Ltd v Revenue and Customs CA 14-Jul-2011
Parents had each left a share of their estate to the bank on trusts for their disabled son. The revenue said that the gifts were caught by and taxable by virtue of sections 5, 49 and 89 of the 1984 Act, the residuary estates of both parents forming . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 08 May 2022; Ref: scu.441864

In Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners: ChD 1959

Whether Trust was void for perpetuity

Judges:

Danckwerts J

Citations:

[1959] 1 Ch 699

Jurisdiction:

England and Wales

Cited by:

At First Instance – In Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners HL 8-Oct-1962
The trustees proposed establishing a new trust in respect of the share of an estate to which an infant beneficiary had a contingent entitlement. A portion of the trust fund would be allocated to the new trust.
Held: This was a lawful exercise . .
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 . .
See Also – In Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners CA 1961
. .
See Also – in Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners CA 2-Jan-1961
. .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 07 May 2022; Ref: scu.402928

Wadeson v Duke: 1846

After decree the Trustees should not lay out money on mortgage without the previous approbation of the Court

Citations:

[1846] EngR 231, (1846) 1 Coop T Cott 160, (1846) 47 ER 794

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 07 May 2022; Ref: scu.302126

Re Pfrimmer: 1936

(Manitoba Court of Appeal) Mr Pfrimmer in his will in 1930, disposed of a house on various trusts. On his death, the question arose as to whether the carrying into effect of the testamentary trusts was prevented by two documents (one called a ‘Declaration of Trust’) that he had executed five years before he made his will. The documents related to the same house and, if they created a valid trust in respect of it, the provisions in the will could not take effect. The question was whether they did create such a trust, or whether they took effect only as a testamentary disposition.
Held: The documents showed that the land subject to them was to remain in Mr Pfrimmer’s disposition to do with what he liked and that it was not until his death that they were intended to become operative; and that they were intended to take the place of a testamentary disposition in order to avoid probate expense and succession duties ‘and not to create an irrevocable trust by a binding transfer of the properties.’ Trueman JA, giving the judgment of the court, said: ‘The law is clear that to give validity to a declaration of trust of property, it is necessary that the donor or grantor should have absolutely parted with his interest in the property, and have effectually put such interest beyond his own reach. . Whatever may be the form of an instrument, if the person executing it intends that it shall not take effect until after his death, and it is dependent upon the death for its vigour and effect, it is not a trust. ,br />Thus, in Malim v. Keighley, 2 Ves. Jun. 333, at p. 335, 30 E.R. 659, the Master of the Rolls said:– ‘I will lay down the rule as broad as this; wherever any person gives property, and points out the object, the property and the way in which it shall go, that does create a trust, unless he shews clearly, that his desire expressed is to be controlled by the party; and that he shall have an option to defeat it.”

Citations:

[1936] 2 DLR 460

Jurisdiction:

Canada

Cited by:

Cited – Chopra v Bindra CA 19-Mar-2009
The parties sought to have declared the effect of a deed of trust under which the on the death of either co-owner, the survivor became entitled to the entirety of the proceeds of sale absolutely. The gift was defective as self defeating. The judge . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 07 May 2022; Ref: scu.323754

Sugden v Crossland: 18 Feb 1856

A sum of money paid to a trustee to persuade him to retire in favour of the payee was to be ‘treated as a part of the trust fund’.

Judges:

Sir William Page Wood V-C

Citations:

[1856] EngR 276, (1856) 3 Sm and G 192, (1856) 65 ER 620

Links:

Commonlii

Cited by:

Cited – FHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 07 May 2022; Ref: scu.291031

Birley v Birley: CA 12 Mar 1858

An absolute appointment was made to an object of a power, under a prior ‘understanding’ between the appointor and appointee, to hold in ‘In trust ‘ for persons, some of whom were objects and some not.
Held: The whole was void.

Judges:

Sir John Romilly MR

Citations:

[1858] EngR 441, (1858) 25 Beav 299, (1858) 53 ER 651

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Eclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 07 May 2022; Ref: scu.288912

Lady Mary Topham v The Duke Of Portland: 30 Jun 1862

The donee of a trust power cannot execute it for an object foreign to purposes for which it was intended, and therefore an ordinary power in a marriage settlement of appointment amongst the children cannot be made subservient to the accomplishment of any particular fancies or inclinations which the donee of the power may have as to the profession in life which a child may choose to adopt, nor can it be exercised in such a mode as to prevent a child marrying a particular person.
An appointment was made to A. (an object of a power) with trusts in favor of B (another object), but intended to accomplish a purpose not warranted by the power. Held, that it could not be treated as an absolute appointment of B. discharged of the void purpose. An appointment, under a previous agreement, that the appointee will deal with the appointed fund in a manner foreign to the purposes for which the power was intended is void, and so is such an appointment where the agreement is subsequent, if accomplished by the inevitable influence possessed by the appointor over the appointee. A parent, having by his settlement an exclusive power of appointment of a fund to his children, was desirous of preventing a daughter marrying a particular gentleman. For that purpose, he appointed part of the fund to his son, who, about a month afterWards, settled it on discretionary trusts in favor of the daughter, the object being to prevent that marriage. Held, that this was one transaction, that the object aimed at was foreign to the purposes for which the power was intended, and that the appointment was altogether void in equity.

Citations:

[1862] EngR 870, (1862) 31 Beav 525, (1862) 54 ER 1242

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See also – Lady Mary Topham v Duke Of Portland 20-Jun-1863
Commonlii The costs of an application to stay the execution of a decree pending an appeal to the House of Lords were to be paid by the applicant. . .
See Also – Duke of Portland v Topham CA 1864
Commonlii The donee of a power of appointing portions among his younger children appointed a double share to a younger child without previous communication with him. But it appeared from the instructions for the . .
See Also – The Duke Of Portland And Others v Lady Mary E Topham And Others HL 6-Apr-1864
A power, to be validly executed, must be executed without any indirect object. The donee of the power must give the property which is the subject of it, as property, to the person to whom he affects to give it.
A created a power to appoint a . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 07 May 2022; Ref: scu.287036

The Duke Of Portland And Others v Lady Mary E Topham And Others: HL 6 Apr 1864

A power, to be validly executed, must be executed without any indirect object. The donee of the power must give the property which is the subject of it, as property, to the person to whom he affects to give it.
A created a power to appoint a fund between two of his daughters, H and M or to appoint it to one, in exclusion of the other, and subject to such restrictions, etc., as the donee of the power (A’s son) might think fit. The donee of the power executed a deed of appointment, which in form gave the whole of the fund to one of the sisters, N., but it was understood between the parties that N. was only to receive one moiety of the fund for her own use, and that she was to allow the other to accumulate subject to some future arrangement, and in pursuance of this understanding H. gave her brokers directions to invest, in the name of the donee of the power, of another brother, and of herself, one-half of the fund, and the interest thereon, to accumulate : Held, that this was, in equity, a fraudulent execution of the power, and that the deed of appointment as wholly void.
Lord Westbury LC stated the rule: ‘that the donee, the appointor under the power, shall, at the time of the exercise of that power, and for any purpose for which it is used, act with good faith and sincerity, and with an entire and single view to the real purpose and object of the power, and not for the purpose of accomplishing or carrying into effect any bye or sinister object (I mean sinister in the sense of its being beyond the purpose and intent of the power) which he may desire to effect in the exercise of the power.’

Judges:

Lord Westbury LC

Citations:

(1864) 11 HL Cas 32, [1864] EngR 339, (1864) 11 HLC 32, (1864) 11 ER 1242, (1869) LR 5 Ch App 40

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Lady Mary Topham v Duke Of Portland 20-Jun-1863
Commonlii The costs of an application to stay the execution of a decree pending an appeal to the House of Lords were to be paid by the applicant. . .
See Also – Lady Mary Topham v The Duke Of Portland 30-Jun-1862
The donee of a trust power cannot execute it for an object foreign to purposes for which it was intended, and therefore an ordinary power in a marriage settlement of appointment amongst the children cannot be made subservient to the accomplishment . .
Cited – Duke of Portland v Topham CA 1864
Commonlii The donee of a power of appointing portions among his younger children appointed a double share to a younger child without previous communication with him. But it appeared from the instructions for the . .

Cited by:

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

Trusts

Updated: 07 May 2022; Ref: scu.282053

Robinson v Robinson: CA 1851

The trustee defendants had been directed by their testator to realise his investments and invest the proceeds in one or other of two forms of investment; but the trustees had delayed the realisation of the testator’s investments. When they actually sold they realised more than they would have realised if they had sold immediately after the testator’s death, but less than if they had sold immediately after the testator’s death and had thereupon invested the proceeds in one, rather than the other, of the two authorised forms of investment. The plaintiff sought to charge the trustees for what they would have received if they had followed that course of realisation and investment which in the event would have been the most favourable to the beneficiaries.
Held: The claim was rejected. Cranworth LJ said: ‘Where a man is bound by covenants to do one of two things, and does neither, there in an action by the covenantee, the measure of damage is in general the loss arising by reason of the covenantor having failed to do that which is least, not that which is most, beneficial to the covenantee: and the same principle may be applied by analogy to the case of a trustee failing to invest in either of two modes equally lawful by the terms of the trust.’

Judges:

Cranworth LJ

Citations:

(1851) 1 De GM and G 247, [1851] EngR 994, (1851) 1 De G M and G 247, (1851) 42 ER 547

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Nestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 07 May 2022; Ref: scu.268064

In re Sharp: 1845

(Year?) Cotton LJ discussed a power to invest ‘upon the debentures or securities of any railway or other public company’ and said:- ‘It is true that he refers to railway companies, but he also adds, ‘or any other public company’; and I think it would be a wrong interpretation of the will to say that those words, because they follow the reference to railway companies, must be confined to companies similar to them or to companies incorporated in the same way as railway companies are, namely, by special Act of Parliament.’

Judges:

Cotton LJ

Citations:

[1845] ChD 286

Cited by:

Cited – Nestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 07 May 2022; Ref: scu.268063

Re GKN Bolts and Nuts Ltd etc Works Sports and Social Club: ChD 1982

There was a sports and social club associated with GKN, whose members were all employees of GKN. The main issue in the case was whether the club had ceased to exist. But one subsidiary issue was whether a meeting had been validly convened. The club rules required 14 days’ notice to be given, but in fact only three days’ notice were given. Notice of the meeting was posted in the company’s canteen, to which all the members had access. However, the requirement of 14 days’ notice had hardly ever been followed. Seven or three days’ notice were not unusual and there was no evidence that anyone had ever objected to short notice. The subject matter of the meeting was to discuss the sale of the club’s sports ground The court also considered the status of associate members of a club, who obtained that status merely by signing a vistors book.
Held: The rules did not make such associate members members properly. Despite the short notice, the resolution to sell the sports ground was validly passed: ‘with the prospect that a sale would bring some money to each member of the club, it seems obvious that news of the meeting would speedily reach all, if not quite all, of the members of the club.’
However, the same meeting (convened by the same notice) also passed resolutions altering the way in which the proceeds of sale of the sports ground would be distributed among the members, and Megarry V-C held that insufficient notice of that business had been given, with the consequence that those resolutions were invalid.
Megarry V-C said: ‘As is common in club cases, there are many obscurities and uncertainties, and some difficulty in the law. In such cases, the court usually has to take a broad sword to the problems, and eschew an unduly meticulous examination of the rules and resolutions. I am not, of course, saying that these should be ignored; but usually there is a considerable degree of informality in the conduct of the affairs of such clubs, and I think that the courts have to be ready to allow general concepts of reasonableness, fairness and common sense to be given more than their usual weight when confronted by claims to the contrary which appear to be based on any strict interpretation and rigid application of the letter of the rules. In other words, allowance must be made for some play in the joints.’

Judges:

Megarry J VC

Citations:

[1982] 1 WLR 774

Jurisdiction:

England and Wales

Cited by:

Cited – Hunt and Another v McLaren and others ChD 4-Oct-2006
Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
Cited – Speechley and Others v Allott and Others CA 10-Mar-2014
The parties disputed the management of a social club. The club owned a bowling green, and bowling members sought to restrain its closure. The appellants now said that the court should not have found at first instance that a meeting had validly . .
Lists of cited by and citing cases may be incomplete.

Trusts, Company

Updated: 07 May 2022; Ref: scu.245262

Re Recher’s Will Trusts: ChD 1972

The deceased gave a share of the residue, to ‘The Anti-Vivisection Society, 76 Victoria Street, London S.W.1.’ She died in 1962 and her husband died in 1968. Until the end of 1956 a non-charitable unincorporated society, known as the ‘London and Provincial Anti-Vivisection Society’ had carried on its activities at 76 Victoria Street, but in 1957 it was amalgamated with a larger non-charitable unincorporated society, known as ‘The National Anti-Vivisection Society’ of 27 Palace Street, London S.W.1. and the Victoria Street premises were closed down. It changed its name to ‘The National Anti-Vivisection Society (incorporating the London and Provincial Antivivisection Society).’ In 1963 the National Anti-Vivisection Society Ltd was incorporated and the assets were vested in it. It was not a charity. The gift had to be construed as a gift to the London and Provincial Anti-Vivisection Society, 76 Victoria Street, and not to the larger combined society. It was not to be construed as a gift in trust for the purposes of the Society. It could have taken effect as a legacy to the members of the society beneficially, as an accretion to the funds which constituted the subject matter of the contract by which the members had bound themselves inter se. But since the Society had been dissolved, the gift could not be construed as a gift to the members of a different association and they therefore failed. A trust for non-charitable purposes, as a distinct from a trust for individuals, was clearly void because there is no beneficiary.
But: ‘It does not, however, follow that persons cannot band themselves together as an association or society, pay subscriptions and validly devote their sums in pursuit of some lawful non-charitable purpose. An obvious example is a members’ social club. . . Such an association is bound . . to have some sort of constitution; that is to say, the rights and liabilities of the members of the association will inevitably depend on some form of contract inter se, usually evidenced by a set of rules .. As and when a member paid his subscription to the association, he would be subjecting his money to the disposition and expenditure thereof laid down by the rules . . The resultant situation, on analysis, is that the . . society represented an organisation of individuals bound together by a contract under which their subscriptions became, as it were, mandated towards a certain type of expenditure … Just as the two parties to a bi-partite bargain can vary or terminate their contract by mutual assent, so it must follow that the life members, ordinary members and associate members of the . . society could, at any moment of time, by unanimous agreement (or by majority vote, if the rules so prescribe), vary or terminate their multi-partite contract. There is no private trust or trust for charitable purposes or other trust to hinder the process.’

Judges:

Brightman J

Citations:

[1972] Ch 529

Jurisdiction:

England and Wales

Citing:

Approved – Neville Estates Ltd v Madden ChD 1962
A charitable trust was created for the benefit of the members of Catford Synagogue.
Held: The court considered three categories of valid non-charitable purpose gifts: (1) an absolute gift to members of an association at the date of the gift, . .

Cited by:

Cited – Hunt and Another v McLaren and others ChD 4-Oct-2006
Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 07 May 2022; Ref: scu.245266

Passee v Passee: 1988

Citations:

[1988] 1 FLR 263

Jurisdiction:

England and Wales

Cited by:

Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 07 May 2022; Ref: scu.230912

Palestine Solidarity and Another, Regina (on The Application of) v Secretary of State for Housing, Communities and Local Government: SC 29 Apr 2020

The court considered the extent on trustees of an obligation to invest in an ethical manner.
Lord Carnwath said that trustees: ‘may take non-financial considerations into account – ‘provided that doing so would not involve significant risk of financial detriment to the scheme and where they have good reason to think that scheme members would support their decision.”

Judges:

Lady Hale, Lord Wilson, Lord Carnwath, Lady Arden, Lord Sales

Citations:

[2020] UKSC 16, [2020] Pens LR 20, [2020] ICR 1013, [2020] 1 WLR 1774, [2020] HRLR 15, [2020] 4 All ER 347

Links:

Bailii, Bailii Summary

Jurisdiction:

England and Wales

Cited by:

Cited – Butler-Sloss and Others v The Charity Commission for England and Wales and Another ChD 29-Apr-2022
Principles allowing Ethical Investment by Trustees
Should charities, whose principal purposes are environmental protection and improvement and the relief of poverty, be able to adopt an investment policy that excludes many potential investments because the trustees consider that they conflict with . .
Lists of cited by and citing cases may be incomplete.

Financial Services, Trusts

Updated: 07 May 2022; Ref: scu.650486

In re W (EEM): 1971

It would be for the ‘benefit’ of the patient to exercise the powers conferred by section 95(1) of the 1983 Act so as to enable there to be done something which the patient would have wished to do if he had been able to act for himself.

Judges:

Mr Justice Ungoed-Thomas

Citations:

[1971] Ch 123

Jurisdiction:

England and Wales

Cited by:

Cited – Jemma Trust Company Ltd v Kippax Beaumont Lewis (A Firm) and others CA 11-Mar-2005
The defendant firm of solicitors, acting as executors had sought to arrange matters to minimise Inheritance Tax. A deed of variation was put in place after approval by the court, but the CTO interpreted the deed differently. The executors believed . .
Lists of cited by and citing cases may be incomplete.

Health, Trusts

Updated: 06 May 2022; Ref: scu.223513