Category: Trusts

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 appointment that its purpose as to half of the double share was that it should be held in trust, and the income accumulated during the life of the appointee and twenty-one years afterwards, or until the successor to the title of the appointor should direct the half of the double share and accumulations to be paid to another child who had been excluded by reason of an intended marriage disliked by the appointor. In the absence of such direction the half of the double share and accumulations were intended to be paid to the appointee. The appointee soon after the appointment executed a deed settling the moiety accordingly.
Held: 1. That if the appointment and subsequent settlement could be held to be one transaction, the provisions for accumulation and for the control of the appointor’s succesor in titie over the appointed fund could not he rejected as mere excess so as to give the moiety to the excluded child. 2. That the purpose of the appointment as to the moiety, although uncommunicated vitiated it as to that portion, but as to that portion only.
Turner LJ said that he took it ‘to be clear, that no person, however innocent he may himself be, can, where there is no valuable consideration, derive a title under the fraud of another’.

Judges:

Turner LJ

Citations:

[1863] EngR 1051, (1863) 1 De G J and S 517, (1863) 46 ER 205

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

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 . .
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. . .

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. . .
Cited – 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 . .
Cited – Soutzos v Asombang and Others ChD 21-Jun-2011
The claimant had obtained a freezing order against the defendants. His claim having been dismissed, the court now considered if and what damages should be paid under the cross-undertaking he had given.
Held: Setting out and applying the . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 May 2022; Ref: scu.222826

Phipps v Boardman: CA 1965

Affirmed

Judges:

Lord Denning MR

Citations:

[1965] Ch 992

Jurisdiction:

England and Wales

Citing:

Appeal from – Phipps v Boardman ChD 1964
Agents of certain trustees had purchased shares, in circumstances where they only had that opportunity because they were agents.
Held: The shares were held beneficially for the trust. . .

Cited by:

Appeal from – Phipps v Boardman HL 3-Nov-1966
A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to . .
Cited – OBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 May 2022; Ref: scu.223010

Ex parte Forder: CA 1881

A sale of part of the property of the bankrupt was made by a trustee in bankruptcy to two buyers, one of whom was the trustee’s under-age son. The contract was not binding on the son for his minority, and the sale was also at an undervalue.
Held: The case was decided on that ground, but on a broader view. Lord Selbourne LC said: ‘Many authorities had laid down emphatically, not only with regard to trustees generally, but with regard to assignees in bankruptcy in particular, that they could not exercise the power of sale given to them for the benefit of the creditors directly or indirectly for the benefit of themselves or of anyone so connected with them as to stand in a position more advantageous than an ordinary purchaser.’ The sale being to the trustee’s son, who was still a minor and so not bound by the contract, and: ‘How under such circumstances the bankrupt’s estate will be bound by the contract it was impossible to conceive. At any rate, the circumstances threw on the trustee the burden of showing that it was a proper contract.’

Judges:

Lord Selbourne LC

Citations:

(1881) 25 Sol Journ 720

Jurisdiction:

England and Wales

Cited by:

Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 May 2022; Ref: scu.220737

In re Dale dec’d: ChD 1994

The taking of a benefit on the strength of a binding engagement is enough to create a constructive trust. For this doctrine to apply there must be a contract at law. For the doctrine of mutual wills to apply it is not necessary that the second testator take a personal direct benefit under the other will.

Judges:

Morritt J

Citations:

[1994] Ch 31

Jurisdiction:

England and Wales

Citing:

Cited – Gray v Perpetual Trustee Co Ltd PC 12-Jun-1928
The Board considered a claim that wills had been mutual. Viscount Haldane said: ‘The case before us is one in which the evidence of an agreement, apart from that of making the wills in question, is so lacking that they are unable to come to the . .
Cited – Dufour v Pereira 1769
Nature of Joint and Mutual Wills
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
Cited – Lord Walpole v Lord Orford HL 1797
The court considered the difference between an obligation accepted in law, and what was described as ‘an honourable engagement’. . .

Cited by:

Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – Walters v Olins CA 4-Jul-2008
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
Cited – Healey v Brown ChD 25-Apr-2002
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: . .
Cited – Charles and Others v Fraser ChD 11-Aug-2010
The claimants said that the last will had purported to revoke and earlier but mutual will. They said that the executors should be required to implement the revoked will. The wills had been made by elderly sisters. The wills were in similar terms, . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 06 May 2022; Ref: scu.214596

Coulthard v Disco Mix Club Ltd: CA 2000

The expression ‘constructive trustee’ creates a trap.This ‘type of trust is merely the creation by the court . . to meet the wrongdoing alleged: there is no real trust and usually no chance of a proprietary remedy.’

Citations:

[2000] 1 WLR 707

Jurisdiction:

England and Wales

Cited by:

Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 May 2022; Ref: scu.193892

Sinclair v Brougham: HL 1914

An insolvent building society had, outside its powers, run a banking business. The House considered the competing claims of the unadvanced shareholders of the building society’s intra vires business, members of the society who had not been granted mortgages, and the depositors of its ultra vires banking business. The claims of all other creditors had, by agreement, been met. It was accepted that contracts entered into for the purposes of that ultra vires business, which by the time of bankruptcy had become the society’s predominant business, were, so far as the society was concerned, void. The issue was the significance of that fact for the priority of claims of the shareholders and the depositors to the funds held by the Liquidators. In the High Court and the Court of Appeal the unadvanced shareholders prevailed: the depositors’ contracts were held void, and therefore would only be honoured to the extent that all prior valid claims had been met.
Held: The competing claims for priority of both the unadvanced shareholders and the depositors were declined. The available funds were to be shared pro rata, an outcome that had not been considered until raised by Viscount Haldane during argument.
Viscount Haldane approached the question by assuming that specific tracing was not possible and, on that basis, concluding that pro rata sharing was the way to apportion the monies: ‘The depositors can, in my opinion, only claim the depreciated assets which represent their money, and nothing more. It follows that the principle to be adopted in the distribution must be apportionment on the footing that depreciation and loss are to be borne pro rata. I am, of course, assuming in saying this that specific tracing is not now possible.
What is there must be apportioned accordingly among those whose money it represents, and the question of how the apportionment should be made is one of fact. In the present case the working out of a proper apportionment based on the principle of tracing not only would involve immense labour but would be unlikely to end in any reliable result. The records necessary for tracing the dealings with the funds do not exist. We have therefore, treating the question as one of presumption of fact, to give such a direction to the liquidator as is calculated to bring about a result consistent with the principles already laid down.

Judges:

Viscount Haldane

Citations:

[1914] AC 398, [1914-15] All ER 622

Jurisdiction:

England and Wales

Cited by:

Explained – In re Diplock’s estate CA 1948
After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
Held: The origin of the equitable rules of tracing were . .
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Lists of cited by and citing cases may be incomplete.

Trusts, Insolvency, Equity

Updated: 06 May 2022; Ref: scu.187413

Rosco v Winder: 1915

Citations:

[1915] 1 Ch 62

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.

Trusts

Updated: 06 May 2022; Ref: scu.187419

Sekhon v Alissa: 1989

A house had been conveyed into the daughter’s name despite her mother’s contribution to the purchase price.
Held: In the absence of evidence that the mother’s contribution had been by way of gift or a personal loan, the arrangement created a presumption of a resulting trust.

Judges:

Hoffmann J

Citations:

[1989] 2 FLR 94

Jurisdiction:

England and Wales

Trusts

Updated: 06 May 2022; Ref: scu.556805

Conin; Re: 1977

Walton J expressed serious doubts about the extension of the rule in Strong v Bird to an administrator. The appointment of a donee by a donor to be his executor is a personal act of choice by the donor. The effect of such act is to make it impossible for a donee, as executor, to sue himself. And that is consistent with the intention on the part of the donor to make a gift to the donee. The appointment of an administrator, on the other hand, is not the act or choice of the donor but of the law. And often it is a matter of pure chance which of the many persons who are entitled to a grant of letters of administration will be appointed as the administrator. I

Judges:

Walton J

Citations:

[1977] 2 All ER 720, [1979] Ch 16

Jurisdiction:

England and Wales

Wills and Probate, Trusts

Updated: 06 May 2022; Ref: scu.556389

In re Buckton’s Settlement Trusts: 1964

Citations:

[1964] Ch 497

Jurisdiction:

England and Wales

Cited by:

Cited – Futter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 May 2022; Ref: scu.509124

Blathwayt v Baron Cawley: HL 1975

A condition to take effect if the tenant for life ‘be or become a Roman Catholic’ was not void for uncertainty. The tests for ascertaining whether a condition precedent and a condition subsequent are void for uncertainty are different, the latter being stricter than the former.
Lord Wilberforce said: ‘I do not doubt that conceptions of public policy should move with the times and that widely accepted treaties and statutes may point the direction in which such conceptions, as applied by the courts, ought to move.’ . .
and went on to refer to ‘the right, which I conceive judges have, to judge the degree of certainty with some measure of common sense and knowledge and without excessive astuteness to discover ambiguities.’

Judges:

Lord Cross of Chelsea, Lord Cross of Chelsea, Lord Wilberforce

Citations:

[1976] AC 397, [1975] 3 All ER 625

Jurisdiction:

England and Wales

Trusts

Updated: 06 May 2022; Ref: scu.510143

In re Hubbard’s Will Trusts: 1962

The rule that a gift may fail on the failure of a prior interest upon which it is dependent and which is void for remoteness is a ‘rule of invalidity by contagion with another and invalid limitation’.

Citations:

[1962] Ch 275

Jurisdiction:

England and Wales

Cited by:

Cited – Futter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 06 May 2022; Ref: scu.509123

In Re Collard’s Will Trusts: 1961

Buckley J said: ‘In the present case, the farm has recently been valued by qualified valuers at andpound;20,000, and an advance of andpound;20,000 would be within the financial limit of the power of the advancement which the trustees at present have, having regard to the value of the elder daughter’s settled share. So far as I can see, there would be nothing wrong in the trustees making an advance in cash to her son of andpound;20,000 and subsequently selling the farm to him for andpound;20,000. In those circumstances it seems to me that the Court need not insist on that process having gone through; and that the right view is that the trustees have power to convey the farm to the son and treat that conveyance as an advancement to him of its market value.

Judges:

Buckley J

Citations:

[1961] 1 Ch 293

Jurisdiction:

England and Wales

Cited by:

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

Trusts

Updated: 06 May 2022; Ref: scu.509242

In Re Druce’s Settlement Trusts: ChD 1962

Russell J discussed the difficulties of trustees when making an application on behalf of a beneficiary of the trust: ‘The application was made not by a beneficiary but by the trustees. This is a disadvantage, particularly in a case such as the present, where the interests of the persons for whom the court is concerned are not exactly the same as those of some respondent. It means that there is no counsel whose sole task is to protect and support those interests. Where the trustees make the application their counsel is there to argue for the acceptance of the scheme: but at the same time his duty and that of the trustees is to be the watchdog for (for example) unborn interests. Let me say at once that Mr Brightman for the trustees, while recognising the disadvantage, overcame admirably the duality of his position. To change the metaphor, his performance as touch judge was not marred by the fact that he started in the line-out, and I was grateful for his assistance. Nevertheless, the disadvantages of this duality exist. Counsel for the applicant trustees must have an instinctive reaction against a criticism from the bench, designed to safeguard or benefit those unborn interests, which would be lacking in a respondent trustee, an instinctive tendency to be against alteration of the scheme for the approval of which he is applying. Moreover, if the criticism be in fact unsound, it is likely to take longer for the judge to be dissuaded from it because of that very duality. There are, of course, cases of applications to vary beneficial interests where it is necessary and proper that the trustees should make the application, notwithstanding the disadvantage I have mentioned. This case was one of them, the trustees being satisfied that the scheme was beneficial to their beneficiaries and no beneficiary being willing to make the application. But, in general, the trustees should not be the applicants in applications to vary beneficial trusts, unless they are satisfied that the proposals are beneficial to the persons interested and have a good prospect of being approved by the court, and further, that if they do not make the application no one will. In particular, it would not be right if it became the general practice for such applications to be made by the trustees upon the supposition that should the application fail it will be more probable (though not, of course, certain) that the costs of all parties will be directed to be met out of the trust funds.’

Judges:

Russell J

Citations:

[1962] 1 WLR 363

Jurisdiction:

England and Wales

Cited by:

Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Trusts

Updated: 06 May 2022; Ref: scu.448124

In Re Peruvian Railway Construction Co Ltd: 1915

William Alt died insolvent in 1908. His estate included shares in the company, which went into voluntary liquidation in 1914. Alt owed the company andpound;2,633.
Held: In the distribution of the company’s surplus assets the liquidator could retain out of the fund, on account of Alt’s debt, only the amount of the dividend on the debt. Sargant J distinguished other cited authorities as having ‘an entire absence of the special feature present in Cherry v Boultbee and in the case before me, namely, the insolvency of the original debtor before the right of retainer or quasi set-off had first arisen.’ He restated the Cherry v Boultbee rule: ‘where a person entitled to participate in a fund is also bound to make a contribution in aid of that fund, he cannot be allowed so to participate unless and until he has fulfilled his duty to contribute.’

Judges:

Sargant J

Citations:

[1915] 2 Ch 144

Citing:

Explained – 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 – 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: 06 May 2022; Ref: scu.416572

Francis Harmore and Elizabeth His Wife v Doble Brook, Birkenhead Collins, John Hamlin, Tho Hamlin An Infant, By The Said John His Guardian, And George Banister: 1674

Articles in Marriage to pay 500 pounds with his Daughter by such a ime, and to secure to her all his real and Personal estate when he died; and afterwards he devised all his personal Estate to another, which being contrary to the Articles, that Agreement was deemed to be performed.

Citations:

[1674] EngR 26, (1674) Fin H 183, (1674) 23 ER 101 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Family, Trusts

Updated: 06 May 2022; Ref: scu.406025

Legg v Goldwire: 10 Nov 1736

By Lord Chancellor Talbot – Where articles are entered into before marriage, and a settlement is made after marriage different from those articles (as if by articles the estate was to be in strict settlement, and by the settlement the husband is made tenant in tail whereby he hath it in his power to bar the issue), this Court will set up the articles against the settlement; but where both articles and settlement are previous to the marriage, at a time when all parties are at liberty, the settlement differing from the articles will be taken as a new agreement between them and shall control the articles. And although, in the case of West v Errissey . . afterwards in the House of Lords, in 1727, the articles were made to control the settlement made before marriage, yet that resolution no way contradicts the general rule; for in that case the settlement was expressly mentioned to be made in pursuance and performance of the said marriage articles, whereby the intent appeared to be still the same as it was at the making of the articles.

Judges:

Talbot LC

Citations:

[1736] EngR 81, (1736) Cas T Talbot 20, (1736) 25 ER 637

Links:

Commonlii

Equity, Trusts, Family

Updated: 05 May 2022; Ref: scu.386774

Fielding v Fielding: CA 1977

The wife, following divorce, applied for a lump sum order to be made against the husband but then she added a claim under s.17 of the Act of 1882 for a declaration that she had an interest, for which the husband should account to her, in the assets of two public houses which together they had managed.
Held: The registrar and, on first appeal, the circuit judge had been wrong to concentrate – at great length – on the claim under the Act of 1882 referable to strict property rights. Ormrod LJ said that it was ‘of very little value to proceed under the [Act of] 1882 after divorce’ and the 1973 Act ‘provides an elastic method of deciding what is a fair order’.

Judges:

Ormrod LJ

Citations:

[1977] 1 WLR 1146

Statutes:

Matrimonial Causes Act 1973, Married Women’s Property Act 1882 18

Jurisdiction:

England and Wales

Cited by:

Cited – Miller Smith v Miller Smith CA 2-Dec-2009
The married couple owned a property as tenants in common. The husband had moved out and, anticipating divorce proceedings, sought an order for the sale of the house citing his inability to sustain the very considerable mortgage payments. The wife . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 05 May 2022; Ref: scu.381720

The Marquis of Cholmondeley v Lord Clinton: 1819

Where A, in a conveyance to uses, settled an estate for life on himself, remainder in tail to his issue, with an ultimate limitation to the heirs of SR in fee; and at the time of the settlement A was himself the right heir of SR.
Held: that this ultimate limitation was void, and that the estate after the death of A without issue, descended on his heirs general. Held, also, that it was not competent to go into the intention of the settlor, apparent from the recital, in order to explain the words of this limitation, they being words of plain and well-known import.

Citations:

[1819] EngR 158, (1819) 2 B and A 625, (1819) 106 ER 494

Links:

Commonlii

Citing:

See Also – Earl Cholmondeley v Lord Clinton 1789
A solicitor even though he may not be continuing to act for a particular client, must never be permitted to disclose, to the injury of that client, matters of which he had learned whilst so employed. . .
See Also – The Earl of Cholmondeley v Lord Clinton 17-Jul-1813
. .
See Also – Earl Cholmondeley And Ann Seymour Damer v Lord Clinton And Others 16-Jan-1815
A solicitor for one of the parties in a suit cannot become the solicitor for the opposite party, though he is separated from the partnership which jointly were so employed on the other side, and the remaining partner still continues so employed, and . .
See Also – Earl Cholmondeley v Lord Clinton 3-Feb-1815
An Attorney or solicitor cannot give up his client, and act for the opposite party, in any suit between them. . .
See Also – Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton 18-Dec-1816
. .
See Also – Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton, Sir Lawrence Palk, And Others 24-Dec-1816
. .
See Also – Marquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton, Francis Drake, Ambrose St John, John Inglett Fortescue, Sir Lawrence Palk (Deceased), William Seymour, And Others 28-Jun-1817
. .

Cited by:

See Also – Marquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton etc 8-Aug-1820
. .
See Also – Marquis of Cholmondeley v Lord Clinton HL 15-Jun-1821
Equity follows the law . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 05 May 2022; Ref: scu.331361

Stone v Godfrey: 10 Dec 1853

The father of a female infant, who was himself tenant by the curtesy, but whose right was regarded as doubtful, became next friend of his daughter in a suit against the trustee of his late wife’s real estates, in which a decree was obtained for a partition, and conveyance of the infant’s portion to the father, until she attained twenty one, and then to the use of the infant in fee. The father received the rents and profits, and duly accounted to his daughter in respect of them ; but, on her marriage, filed a bill against her and her husband, for a declaration that his daughter’s interest in the estate might be declared, subject to his estate by curtesy. Held, that the Plaintiff, having relinquished what was regarded as a doubtful right, by an arrangement under which he derived a benefit, was not entitled to relief. Semble -A wife, entitled to real estate sested in trustees, who, under an erroneous impression of her rights, paid the rents to other persons, died, without having received the rents, leaving her husband and one daughter her surviving that; the husband was tenant by the curtesy.

Citations:

[1853] EngR 1085, (1853) 1 Sm and G 590, (1853) 65 ER 258

Links:

Commonlii

Cited by:

Cited – Gibbon v Mitchell ChD 1990
G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 05 May 2022; Ref: scu.295071

Egerton v Lord Brownlow: 20 Aug 1851

John WilIiam Earl of Bridgewater devised his freehold estates to trustees, in trust to convey them to the use of Lord Alford, his great-nephew, for ninety-nine years, if he should so long live ; remainder to trustees and their heirs doring the life of Lord Alford, in trust to preserve contingent remainders ; remainder to the use of the heirs male of the body of Lord Alford, with diverse remainders over: provided that, if Lord Alford should die not having acquired the title of Duke or Marquis of Bridgewater, the estate directed to be limited to the heirs male of his body should cease, and the estates should thereupon go over and be enjoyed according to the subsequent uses and limitations directed by his will. Lord Alford died leaving a son, but without having acquired the title. Held, that the proviso was valid.

Citations:

[1851] EngR 789, (1851) 1 Sim NS 464, (1851) 61 ER 180

Links:

Commonlii

Cited by:

Appeal from – Egerton v Earl of Brownlow HL 1853
The House considered a challenge to the terms of a trust on the basis that it offended public policy. The House therefore considered the nature and importance of public policy.
Held: Public policy ‘has been confounded with what may be called . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 05 May 2022; Ref: scu.297105

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 Court would interfere with the exercise by the trustee of such discretion ; yet where it appeared that trustees were about in the due exercise of a discretionary power to deal with a fund, the Court refused to order payment into Court, although the trustees had not actually parted with the fund.

Citations:

[1864] EngR 762, (1864) 2 Dr and Sm 285, (1864) 62 ER 630

Links:

Commonlii

Cited by:

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

Trusts, Litigation Practice

Updated: 05 May 2022; Ref: scu.282476

Stanley v Jackman: 10 Feb 1857

A father directed a fund, given to his daughter, to be settled ‘upon her and her issue,’ so that ‘the same might not be liable or subject to the debts, control or engagements of any husband’ whom she might happen to marry during her lifetime. Held, that the settlement ought to give the daughter a power of appointment by will, in default of issue. Form of settlement in such a case.

Citations:

[1857] EngR 259 (C), (1857) 23 Beav 450

Links:

Commonlii

Trusts, Family

Updated: 05 May 2022; Ref: scu.290005

Hayim v Citibank NA: PC 1987

(Hong Kong) The plaintiffs were the testator’s sons, who were beneficiaries under his American will. He also executed a Hong Kong will under which the residue of his property outside the United States was to be held on trust for sale on the trusts of the American will. The terms of the trust enabled the trustee of the American will to give directions to the trustee of the Hong Kong will in respect of the retention of a house in Hong Kong in the interests of the elderly residents of the house. The plaintiffs began proceedings in Hong Kong against the first defendant, the trustee of the American will, and the second defendant, the trustee of the Hong Kong will, for an order that the house be sold and for damages to be awarded against the second defendant for breach of the trusts of the Hong Kong will by the delay of the second defendant in selling the house. No relief was sought against the first defendant. The board considered whether the plaintiff could bring a derivative action against HK for breach of trust on account of their failure to sell a house in Hong Kong.
Held: The terms of the trust enabled C to give directions to HK in respect of the retention of this house in the interests of the elderly residents of the house. There were no special circumstances entitling the plaintiffs to bring proceedings directly against the second defendant, but that in any event no breach of the trusts of the Hong Kong will had been committed by the second defendant in implementing the lawful instructions of the first defendant.
Lord Templeman said that: ‘when a trustee commits a breach of trust or is involved in a conflict of interest and duty or in other exceptional circumstances a beneficiary may be allowed to sue a third party in the place of the trustee. But a beneficiary allowed to take proceedings cannot be in a better position than a trustee carrying out his duties in a proper manner . .’ and
‘The authorities cited by Mr Nugee only demonstrate that when the trustee commits a breach of trust or is involved in a conflict of interest and duty or in other exceptional circumstances a beneficiary may be allowed to sue a third party in place of the trustee. The beneficiary allowed to take proceedings cannot be in a better position than the trustee carrying out his duty in an improper manner.’
The authorities also: ‘demonstrate that a beneficiary has no cause of action against the third party save in exceptional circumstances, which embrace a failure, excusable or inexcusable, by the trustees in the performance of the duty owed by the trustees to the beneficiary to protect the trust estate, or to protect the interests of the beneficiary in the trust estate.’

Judges:

Lord Templeman

Citations:

[1987] 1 AC 730, [1987] 3 WLR 83

Jurisdiction:

Commonwealth

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.

Trusts, Litigation Practice

Updated: 05 May 2022; Ref: scu.279803

Windeler v Whitehall: 1990

The plaintiff and defendant lived together but were not married. The plaintiff spent some of a legacy she received on living expenses and supervised minor building works to the family home. She claimed an interest in it.
Held: Millett J said: ‘If this were California, this would be a claim for palimony, but it is England and it is not. English law recognises neither the term nor the obligation to which it gives effect. In this country a husband has a legal obligation to support his wife even if they are living apart. A man has no legal obligation to support his mistress even if they are living together. Accordingly, the Plaintiff does not claim to be supported by the Defendant but brings a claim to a proprietary interest in his business and his home.’ The works did not constitute a detriment on which she could rely: ‘Any wife or mistress would do the same. Only a lawyer versed in the authorities but lacking all sense of proportion would consider that such conduct gave her any kind of proprietary interest in the house.’

Judges:

Millett J

Citations:

[1990] 2 FLR 505

Jurisdiction:

England and Wales

Cited by:

Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 05 May 2022; Ref: scu.276433

Oceanic Steam Navigation Co v Sutherberry: 1880

Citations:

(1880) 16 Ch D 236

Jurisdiction:

England and Wales

Cited by:

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

Trusts

Updated: 05 May 2022; Ref: scu.277070

Leake (formerly Bruzzi) v Bruzzi: CA 1974

The house was purchased in the husband’s sole name with a declaration of trust in favour of the husband and wife, holding the property as joint tenants. The wife had left the matrimonial home, and the husband had paid all the mortgage instalments including interest.
Held: The declaration of trust was overriding, and subject to adjustments for matters after severance, the property was to be held in equal shares. He was given credit for the capital payments but not for interest because he had had the sole use of the home and the interest payments could be regarded as ‘something equivalent to rent or payment for use and occupation.

Judges:

Ormrod LJ

Citations:

[1974] 1 WLR 1528

Statutes:

Married Women’s Property Act 1882 17

Jurisdiction:

England and Wales

Cited by:

Cited – Goodman v Gallant CA 30-Oct-1985
The court reviewed the conflicting authorities with regard to the creation of trusts and held that the overwhelming preponderance of authority was that, in the absence of any claim for rectification or rescission, provisions in a conveyance . .
Cited – Byford v Butler; In re Byford deceased ChD 10-Jun-2003
The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the . .
Cited – Clarke v Harlowe ChD 12-Aug-2005
The parties lived together. They acquired between them several properties of which the last was declared to be held as joint tenants. The relationship broke down. The parties now sought a declaration as to the destination of the proceeds of sale, . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 05 May 2022; Ref: scu.181826

Federal Bank of the Middle East v Hadkinson and Others: CA 16 Mar 2000

The Court had to decide whether an order in the standard form of freezing order was effective to cover assets which were held in the defendant’s name but which belonged beneficially to third parties.
Held: It did not. A Mareva injunction in its standard form operated only to attach and freeze assets in which the person injuncted had some interest. They did not affect funds of which he was a bare trustee without any beneficial interest in the assets. The legal title did not mean that the assets were ‘owned’ by him in the relevant sense. Such assets could not be used to satisfy any claim against the person injuncted and were therefore not covered by the standard wording.

Judges:

Mummery and Nourse LJJ

Citations:

Times 16-Mar-2000, Gazette 23-Mar-2000, [2000] 1 WLR 1695

Jurisdiction:

England and Wales

Citing:

Appeal from – Federal Bank of the Middle East Limited v Charles Hadkinson and Others ChD 20-Oct-1999
Security for costs had been properly been required from a defendant who wished to appeal against an order, where that defendant was funded by a party outside the jurisdiction. The right of a party to appeal given by the new Civil Procedure Rules . .

Cited by:

Appealed to – Federal Bank of the Middle East Limited v Charles Hadkinson and Others ChD 20-Oct-1999
Security for costs had been properly been required from a defendant who wished to appeal against an order, where that defendant was funded by a party outside the jurisdiction. The right of a party to appeal given by the new Civil Procedure Rules . .
Cited – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Trusts

Updated: 05 May 2022; Ref: scu.80492

Bishopsgate Investment Management Ltd v Homan and Others: ChD 14 Jul 1994

A tracing remedy is defeated when the account into which the money is paid is overdrawn.

Citations:

Times 14-Jul-1994

Jurisdiction:

England and Wales

Citing:

Appealed to – Re Maxwell Communications Corporation Plc: Bishopsgate Investment Management Ltd v Homan CA 26-Sep-1994
The remedy of tracing is not available through a bank account which was subsequently overdrawn. Nor does the doctrine of tracing extend to following value into a previously acquired asset: ‘there can be no equitable remedy against an asset acquired . .

Cited by:

Appeal from – Re Maxwell Communications Corporation Plc: Bishopsgate Investment Management Ltd v Homan CA 26-Sep-1994
The remedy of tracing is not available through a bank account which was subsequently overdrawn. Nor does the doctrine of tracing extend to following value into a previously acquired asset: ‘there can be no equitable remedy against an asset acquired . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 05 May 2022; Ref: scu.78425

Hine v Hine: CA 1962

Lord Denning MR said: ‘the jurisdiction of the court over family assets under section 17 is entirely discretionary. Its discretion transcends all rights, legal or equitable, and enables the Court to make such order as it thinks fit. This means, as I understand it, that the Court is entitled to make such order as appears to be fair and just in all the circumstances of the case.’

Judges:

Lord Denning MR

Citations:

[1962] 1 WLR 1124

Statutes:

Married Women’s Property Act 1882 17

Jurisdiction:

England and Wales

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.

Trusts, Family

Updated: 04 May 2022; Ref: scu.251498

Gisborne v Gisborne: HL 1877

An absolute owner of property can settle his affairs in such a way and on such terms as would relieve his trustees from the responsibility to exercise the degrees of care and prudence which would otherwise be inferred. When a power has been exercised in good faith and within its terms, the court will not interfere. If trustees with the necessary discretion decide to give some or all of the income to a particular beneficiary the Court will not review their decision, even if it might be thought unwise. Where a discretion is expressed to be absolute it may be that bad faith needs to be shown before it can be challengeable.
Lord Cairns said: ‘My Lords, in a case like this, where the Court of Chancery recognises that the trustees, and not the court, are to be the judges of the quantum to be allowed, where the trustees are willing to exercise the discretion which they claim to exercise, and where the court allows and declares their right to exercise that discretion, I do not understand it to be the habit of the court to go on and express any opinion as to whether the exercise of the discretion by the trustees is a wise or an unwise exercise of that discretion. I understand that in such a case the Court of Chancery steps aside and recognises the trustees as the persons to exercise the discretion, and in its decree does nothing more than, with regard to payments which may be necessary, act upon the exercise of the discretion of the trustees so made.’

Judges:

Lord Cairns LC

Citations:

[1877] 2 AC 300, [1874-80] All ER Rep Ext 1698

Jurisdiction:

England and Wales

Cited by:

Cited – Whishaw v Stephens (on appeal from In re Gulbenkian’s Settlement) (No 1) HL 31-Oct-1968
Parties disputed the effect of clauses describing the beneficiaries of a trust.
Held: The clause did not make sense as it stood. In a fixed non-charitable trust (as opposed to a discretionary trust) the court must be able to draw up a list of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 04 May 2022; Ref: scu.245021

Re Owen: 1894

Legacies were charged on land after the death of the life tenant. The life tenant died in 1880. It was not suggested that time ran from the death of the testator in 1854.

Citations:

[1894] 3 Ch 220

Cited by:

Cited – Gotham v Doodes CA 25-Jul-2006
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .
Lists of cited by and citing cases may be incomplete.

Trusts, Limitation

Updated: 04 May 2022; Ref: scu.244736

Midland Bank plc v Pike: 1988

Citations:

[1988] 2 All ER 434

Jurisdiction:

England and Wales

Cited by:

Cited – Gotham v Doodes CA 25-Jul-2006
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .
Lists of cited by and citing cases may be incomplete.

Trusts, Insolvency

Updated: 04 May 2022; Ref: scu.244733

Standing v Bowring: ChD 1 Jul 1884

The Plaintiff, a widow, in the year 1880 caused a sum of pounds 6000 Consols to be transferred into the joint names of herself and the Defendant, who was her godson, and in whose welfare she took great interest. This transfer was not made known to the Defendant. In 1882 the Plaintiff, then eighty eight years old, married a second husband, and soon afterwards applied to the Defendant to re-transfer the stock into her name alone.
Held: Upon the evidence, that the transfer was originally made with the deliberate intention of benefiting the Defendant, and not with a view to
the creation of a trust. The Court could not, therefore, compel the Defendant to re-transfer the stock.

Judges:

Pearson J

Citations:

[1884] UKLawRpCh 162, (1884) 27 ChD 341

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

At ChD – Standing v Bowring CA 18-Dec-1885
The Plaintiff, a widow, in the year 1880, caused pounds 6000 Consols to be transferred into the joint names of herself and the Defendant, who was her godson. She did so with the express intention that the Defendant, in the event of his surviving . .
Lists of cited by and citing cases may be incomplete.

Contract, Trusts

Updated: 04 May 2022; Ref: scu.656367

Parsons v McBain: 5 Apr 2001

Federal Court of Australia – BANKRUPTCY – constructive trust – transfer of property to beneficiary – whether void as against trustee in bankruptcy
EQUITY – equity of exoneration – how defeated
TRUSTS – ‘common intention constructive trust’ – whether trustee in bankruptcy takes subject to trust – time at which trust ari
A surety, or a person in the position of a surety, has a right of exoneration whereby he or she is entitled to be indemnified by the principal debtor against any liability incurred as a consequence of being called on to pay the debt, describing it as an incident of the relationship between surety and principal debtor.
‘Where co-owners mortgage their property so that money can be borrowed for the benefit of one mortgagor, the other co-owner will be treated as if he or she was a surety and the equity of exoneration will also arise. In those circumstances that other has an interest in the property of the co-mortgagor whose property is to be regarded as primarily liable to pay the debt: Parsons at [21], Duncan, Fox and Co v North and South Wales Bank (1880) 6 App Cas 1 at 10.
However, the right to exoneration is lost where the surety receives a benefit from the loan or the funds raised in respect of which the charge has been given. ‘So, if the borrowed funds are applied to discharge the surety’s debts, the surety could not claim exoneration, at least in respect of the benefit received.’
Here, the giving of the [Brighton Westpac mortgage] might have created a relationship whereby Mr Mogilevsky would be treated as a surety and Mrs Mogilevsky would be treated as principal debtor if:
the mortgage was for the purpose of raising money to benefit the co-owner, in this case Mrs Mogilevsky;
the money borrowed was used for that purpose; and
Mr Mogilevsky derived no benefit from the money so raised.’

Judges:

Black CJ, Kiefel, Finkelstein JJ

Citations:

[2001] FCA 376, (2001) 109 FCR 120, 192 ALR 772

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Armstrong v Onyearu and Another CA 11-Apr-2017
Exoneration of partner’s equity on insolvency
The court considered the equity of exoneration, where property jointly owned by A and B is charged to secure the debts of B only, A is or may be entitled to a charge over B’s share of the property to the extent that B’s debts are paid out of A’s . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency, Trusts

Updated: 04 May 2022; Ref: scu.581747

Hartigan Nominees Pty Ltd v Rydge: 1992

New South Wales – Australia – The Court considered the ‘right’ of the ‘beneficiary’ of a discretionary trust to inspect a memorandum of wishes provided by the instigator of the trust.
Held: Mahoney JA expressed some doubt as to the existence of a duty on a discretionary trustee to provide information on the trust to potential beneficiaries.
Mahoney JA said: ‘[I]f a beneficiary requests it, a trustee is in general obliged to provide documents and information to the beneficiary, at his cost, in relation to the trust property and to provide an accounting in respect of the administration of it.’
Kirby P, dissenting said as to the interpretation of trust documents: ‘These were defined, with an unmistakable element of circulatory, as being the documents in the possession of the trustees, as trustees, containing information about the trust ‘which the beneficiaries are entitled to know’ and in which they thus have a proprietary interest: see Ibid (at 938). This rather unilluminating circularity has been quoted and requoted in many cases since as if it provided a solution to the definition of the documents to which beneficiaries are entitled, and not entitled, to have access. Of course, it does not. It states, rather than solves, the problem of the documents to which access might be had by beneficiaries, as of right, against reluctant trustees.’
Sheller JA said: ‘With respect to the conclusion in Re Londonderry’s Settlement I think material upon which reasons were or might have been based cannot generally be withheld, unless it reveals the reasons themselves or the reasoning process. In Jacobs’ Law of Trusts in Australia, . . referring to the Londonderry’s Settlement case the learned authors say: ‘Nevertheless, this case is clear authority that beneficiaries have no right to see documents private to the trustees which may evidence the reasons why the trustees have made their decisions.’
This statement, in my opinion, accurately describes the nature of documents access to which by beneficiaries is denied.’

Judges:

Mahoney JA, Kirby P, Sheller JA

Citations:

(1992) 29 NSWLR 405

Jurisdiction:

Australia

Trusts

Updated: 04 May 2022; Ref: scu.556391

In re Orphan Working School and Alexandra Orphanage’s Contract: 1912

An established trust had collected subscriptions over many years, ptting those subscriptions wth other funds derived from the sale of one school property for the purchase of another. That property in turn came to be sold, and questions arose as to the need for permission of the Charity Commissioners under the 1835 Act.
Held: Inter alia, that the Trustees of the charity had implied the authority of the donors to select the trusts for the charity, and that the land sale was derived from a donation to a mixed charity and could be applied as income, and as such was exempt from control by the Commissioners.

Judges:

Parker J

Citations:

[1912] 2 Ch 167, [1912] 81 LJ Ch 627, (1912) 107 LT 254

Statutes:

Charititable Trusts Act 1835

Citing:

Considered – Attorney-General v Mathieson CA 1907
The Rev John Wilkinson, ran charities in Stoke Newington in London, including ‘the Mildmay Mission to the Jews’. He was given received andpound;1350 from ‘a lady’ locally who suggested that the money be used for a convalescent home. He pointed out . .

Cited by:

Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Lists of cited by and citing cases may be incomplete.

Charity, Trusts

Updated: 04 May 2022; Ref: scu.543043

Regina v Clowes (No 2): 1994

The court considered appeals from from criminal convictions including theft in the course of which it was necessary to consider whether the defendants were trustees of monies passed to their company for the purpose of investment in a particular fund.
Held: Watkins LJ stated that ‘the fact that a transaction contemplates the mingling of funds is . . not necessarily fatal to a trust’, he accepted that the effect of the authorities is that ‘a requirement to keep monies separate is normally an indicator that they are impressed with a trust and . . the absence of such a requirement, if there are no other indicators of a trust, normally negatives it’. He drew attention to the ‘unwillingness by the courts to construe a relationship of trust in commercial transactions, and, second that it is unusual for there to be a trust of funds where the transaction in question does not require segregation of such funds.’
To ascertain whether there had been a dishonest intention, the defendant is to be judged according to whether the defendant was acting dishonestly by the standards of ordinary and decent people (the objective element) and if so whether he himself must have realised that what he was doing was by those standards dishonest (the subjective element).

Judges:

Watkins LJ

Citations:

[1994] 2 All ER 316

Citing:

See Also – Regina v Clowes CCC 1992
. .

Cited by:

Cited – Williams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
Lists of cited by and citing cases may be incomplete.

Crime, Trusts

Updated: 04 May 2022; Ref: scu.537033

Re Raine: 1929

Intermediate income is not payable on a contingent pecuniary legacy unless there is an express testamentary provision to the contrary. The interest falls into residue until the legacy vests.

Citations:

[1929] 1 Ch 716

Trusts, Wills and Probate

Updated: 04 May 2022; Ref: scu.533630

In re Whiteley, Whiteley v Learoyd: CA 1886

The trustees were charged with making unauthorized or improper investments, and the claim was that the trusts of the will relating to the sums invested should be carried into execution under the direction of the court and that the trustees might be ordered to invest the sums or so much thereof as were not properly invested upon the securities mentioned in the will. The imprudent investment of one sum of andpound;3,000 was established, but as to another of andpound;2,000 no want of prudence or of diligence was established. There was no order as to costs so far as the andpound;3,000 was concerned, but as to the andpound;2,000 the trustees were given their costs out of the trust estate or out of the andpound;3,000, for which they were liable to account. The standard required of a trustee is to take reasonable care, being the care that an ordinary prudent person of business would apply to his own affairs, keeping in mind that moral obligations to others have been undertaken

Judges:

Lindley LJ

Citations:

(1886) 33 ChD 347

Cited by:

Appeal from – Learoyd v Whiteley HL 1-Aug-1887
In managing a trust business the trustee should exercise the same care as an ordinary, prudent business person would exercise in conducting that business as if it were his or her own . .
Cited – Pullan v Wilson and Others ChD 28-Jan-2014
The court was asked difficult questions concerning the reasonableness of the remuneration charged to a number of family trusts by a professional trustee.
Held: Excessive claims for fees had been made, and the trustees were ordered to repay . .
Lists of cited by and citing cases may be incomplete.

Trusts, Costs

Updated: 04 May 2022; Ref: scu.534108

In re Hooper’s Settlement, Phillips v Lake: CA 1943

A 1912 settlement created a trust ‘for such person or persons as would have become entitled to the settled fund under the statutes for the distribution of the personal estate of intestates at the death of the settlor had he died possessed thereof intestate and without having married’. It was argued that this meant the persons at the death of the settlor who were entitled under the statutes in force at the same time.
Held: The argument failed. Under section 50(2) of the 1925 Act 1925, it meant the persons at the death of the settlor (in 1941) who were entitled under the statutes in force immediately before the commencement of the 1925 Act.

Citations:

[1943] Ch 116

Statutes:

Administration of Estates Act 1925 50(2)

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.

Wills and Probate, Trusts

Updated: 04 May 2022; Ref: scu.519434

In Re Irving: 1975

The (Canadian) court considered an application to vary a trust on behalf of a child, and asked itself: ‘Would a prudent adult, motivated by intelligent self-interest, and after sustained consideration of the proposed trusts and powers and the circumstances in which they may fall to be implemented, be likely to accept the proposal?’

Citations:

(1975) 66 DLR (3d) 387)

Cited by:

Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts

Updated: 04 May 2022; Ref: scu.448128

In Re Jones Will Trusts: ChD 11 Jan 1965

Buckley J said that the words ‘unless the contrary intention applies’ mean ‘unless the contrary appears from any surrounding circumstances which carry conviction to the mind of the court’. He also agreed with the submission ‘that the evidence indicating a contrary intention must be strong’.

Judges:

Buckley J

Citations:

[1965] 1 Ch 1124

Jurisdiction:

England and Wales

Cited by:

Cited – Secretary of State for Justice v Slee EAT 19-Jul-2007
EAT Unfair Dismissal – Constructive dismissal
Maternity Rights and Parental Leave – Sex discrimination
The Claimant was employed as a Magistrates’ Clerk and she brought successful claims to the . .
Lists of cited by and citing cases may be incomplete.

Contract, Trusts

Updated: 04 May 2022; Ref: scu.449977

Harries v Church Commissioners for England: 1992

The court considered the investment policy of the respondents and was brought by the then Bishop of Oxford (and two other priests) against the Church Commissioners in relation to their investment policy concerning South Africa. At the time South Africa was transitioning to democracy and there were a range of views within the Church of England about the appropriateness of investing in South Africa. The Church Commissioners’ charitable objects were ‘financial assistance for clergy of the Church of England’. In that sense, the Bishop of Oxford (himself a Church Commissioner) and the other Claimants could be said to be beneficiaries. The Church Commissioners already had in place an ethical investment policy that excluded investments in armaments, gambling, tobacco and newspapers. They also had an express policy in relation to investments in South African companies but the Claimants considered that it did not go far enough and sought stricter investment criteria for such investments. However the actual declarations that they were asking the Court to make did not refer to South Africa and were in quite general terms: ‘(1) That the commissioners . . are obliged to have regard to the object of promoting the Christian faith through the established Church of England; and (2) that in the exercise of those functions . . may not act in a manner which would be incompatible with that object.’
The Vice-Chancellor set out the fundamental principle underlying the exercise of any power by charity trustees:
‘It is axiomatic that charity trustees, in common with all other trustees, are concerned to further the purposes of the trust of which they have accepted the office of trustee. That is their duty. To enable them better to discharge that duty, trustees have powers vested in them. Those powers must be exercised for the purpose for which they have been given: to further the purposes of the trust. That is the guiding principle applicable to the issues in these proceedings. Everything which follows is no more than the reasoned application of that principle in particular contexts’.
Dealing specifically with the power of investment, the Vice-Chancellor said that maximising financial return is the ‘starting point’ because charities always need more money: ‘prima facie the purposes of the trust will be best served by the trustees seeking to obtain therefrom the maximum return, whether by way of income or capital growth which is consistent with commercial prudence. That is the starting point for all charity trustees when considering the exercise of investment powers. Most charities need money; and the more of it there is available, the more the trustees can seek to accomplish.
In most cases this prima facie position will govern the trustees’ conduct. In most cases the best interests of the charity require that the trustees’ choice of investments should be made solely on the basis of well-established investment criteria, having taken expert advice where appropriate and having due regard to such matters as the need to diversify, the need to balance income against capital growth, and the need to balance risk against return’.
Commonly referred to as the Bishop of Oxford case

Judges:

Sir Donald Nicholls VC

Citations:

[1992] 1 WLR 1241, [1993] 2 All ER 300

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.

Trusts, Charity

Leading Case

Updated: 04 May 2022; Ref: scu.556390

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.
Held: The same principles applied to pension funds as applied to other trusts. The NUM trustees were attempting to impose the prohibitions in order to carry out union policy; and mere assertions that their sole consideration was the benefit of the beneficiaries do not alter that conclusion, and the defendant had misrepresented the effect of the legal advice upon which he purported to act.
As this was a trust to provide financial benefits, the power of investment must be exercised to yield the best return for the beneficiaries. However the judge qualified this moderately by saying that while the trustees’ paramount concern must be the beneficiaries’ financial benefit, there may be non-financial benefits that the beneficiaries may wish to obtain even if they might as a result receive lesser financial benefits.
Sir Robert Megarry VC said: ‘The starting point is the duty of trustees to exercise their powers in the best interests of the present and future beneficiaries of the trust, holding the scales impartially between different classes of beneficiaries. This duty of the trustees towards their beneficiaries is paramount. They must, of course, obey the law; but subject to that, they must put the interests of their beneficiaries first. When the purpose of the trust is to provide financial benefits for the beneficiaries, as is usually the case, the best interests of the beneficiaries are normally their best financial interests. In the case of a power of investment, as in the present case, the power must be exercised so as to yield the best return for the beneficiaries, judged in relation to the risks of the investments in question; and the prospects of the yield of income and capital appreciation both have to be considered in judging the return from the investment.’
If trustees for social or ethical reasons fail to make an investment which would produce a better result, the would be subject to criticism. ‘In considering what investments to make trustees must put on one side their own personal interests and views. Trustees may have strongly held social or political views. They may be firmly opposed to any investment in South Africa or other countries, or they may object to any form of investment in companies concerned with alcohol, tobacco, armaments or many other things. In the conduct of their own affairs, of course, they are free to abstain from making any such investments. Yet under a trust, if investments of this type would be more beneficial to the beneficiaries than other investments, the trustees must not refrain from making the investments by reason of the views that they hold.’
however: ‘If trustees make a decision upon wholly wrong grounds, and yet it subsequently appears, from matters which they did not express or refer to, that there are in fact good and sufficient reasons for supporting their decision, then I do not think that they would incur any liability for having decided the matter upon erroneous grounds; for the decision itself was right.’

Judges:

Sir Robert Megarry VC

Citations:

[1985] Ch 270, (1984) 128 SJ 550, [1984] IRLR 260, [1984] 3 WLR 501, [1984] 2 All ER 750

Statutes:

Coal Industry Nationalisation Act 1946 37

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
Cited – In re Wyvern Developments Ltd ChD 1974
An official receiver ‘must do his best by his creditors and contributories. He is in a fiduciary capacity and cannot make moral gestures, nor can the court authorise him to do so.’ . .
Cited – Balls v Strutt 1841
‘It is a principle in this court, that a trustee shall not be permitted to use the powers which the trust may confer upon him at law, except for the legitimate purposes of his trust;…’ . .
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 – In re Whiteley 1886
Lindley LJ considered the duties of a trustee in exercising his powers of investment and said: ‘The principle applicable to cases of this description was stated . . to be that a trustee ought to conduct the business of the trust in the same manner . .
Cited – Harrison-Broadley v Smith CA 1964
The court has an inherent power to make declarations even though they have not been claimed in the proceedings. In order to give effect to a partnership, the partner who owns the premises on which the partnership business is carried on is taken to . .
Cited – Evans v London Co-operative Society Ltd 6-Jul-1976
Rule 7 of the trust instrument of a pension fund provided for the pensions committee to make loans on certain terms to the Co-operative Society in question, and the pension fund had been receiving from the society less than the market rate of . .

Cited by:

Cited – Nestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .
Cited – 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.

Trusts, Financial Services

Leading Case

Updated: 04 May 2022; Ref: scu.222822

Amand v Bradbourne: 1649

Trustee sued concerning the Trust in Chancery obtained a Dismission and had Costs paid him as in Course, but the Costs allowed him and taxed were short of his real Costs. After a Bill by the Cestuy qui Trust to have account of the Trust, on Account of his disbursements he shall be aIIowed his true and necessary Costs in the former Suit, and not be concluded, and co, and so ordered.

Citations:

[1649] EngR 2, (1649-1779) 2 Chan Cas 138, (1649) 22 ER 884 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts, Costs

Updated: 02 May 2022; Ref: scu.417047

Picken v Lord Balfour of Burleigh: CA 1945

The rules of a pension scheme set up by a railway company provided for members’ contributions to be deducted from their salary, but in practice the deductions made had been less than they should have been.
Held: The rule in Cherry v Boultbee applied and the members were not entitled to receive their full pension without the under-contribution being first made good, even if by deduction.
Lord Greene MR said: ‘Whether that be so or not, it seems to me that, even if the only method of contribution provided for by the rule is that of deduction, that would not prevent the equitable principle from applying. When that principle is applied the recipient is deemed to have in his hands the money that he is claiming up to the amount of the deficiency in his own payments. Precisely the same thing must apply to the present case even if the only thing that the member contracted to do was to pay by way of deduction. Look at it how you will, this member has not contributed enough. In so far as his contributions are defective in amount, he has under-paid, under-contributed, and it would be, it seems to me, grossly inequitable that a man in that position could be heard to say: ‘Although I have not made the contributions by way of deduction which I ought to have made, I am now going to say that the application of the equitable rule is not permissible because that would involve making me contribute otherwise than by deduction, which is a thing I never contracted to do.’ That seems to me to be quite a wrong view of the way in which the equitable principle works. My decision does not result in forcing the plaintiffs to make an actual contribution otherwise than by way of deduction. If they come to make a claim then they have to do what is right and bring the fund up to its right level before they can claim to participate in it.’

Judges:

Lord Greene MR

Citations:

[1945] Ch 90

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

Trusts

Updated: 02 May 2022; Ref: scu.416574

Cloutte v Storey: 1911

A trust power was exercised in favour of one of the objects, but under a private arrangement whereby he passed the benefit back to his parents, who had made the appointment.
Held: Farwell LJ spoke of a compromise of proceedings sanctioned by a court, saying that compromises of ascertained specific questions are not to be construed ‘so as to deprive any party thereto of any right not then in dispute and not in contemplation by any of the parties to such deed.’ and ‘the mere fact that the appointment is void does not prevent the court of equity from having regard to it e.g. an appointment under a limited power to a stranger is void, but equity may cause effect to be given to it by means of the doctrine of election’.

Judges:

Farwell LJ

Citations:

[1911] 1 Ch 18

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

Trusts

Updated: 02 May 2022; Ref: scu.408858

Lady Tyrrell’s Case: 1660

Sir Toby Tyrrell died, having his daughter’s portion left her by her grandfather in his hands ; his lady had several jewels, some whereof she had before marriage, others were bought by her with her own money, as she pretended, during the coverture ; Sir Toby allowing her a yearly sum for her own expenses, out of which she saved money to purchase those jewels, The question was, whether those jewels should be liable to make good the daughter’s portion, or whether the lady should have them as paraphernaIia? and it was ruled by the Lord Keeper Finch, that if there was not sufficient for payment of debts, the wife should have no paraphernalia; for it is not fit she should shine iri jewels, and the creditors in the mean time to starve ; and he said, if the wife should in this case have the jewels, and her daughter want bread, this would be to turn the children’s bread into stones.

Citations:

[1660] EngR 174, (1660-1706) 1 Freem Chy 304, (1660) 22 ER 1225 (D)

Links:

Commonlii

Family, Trusts

Updated: 02 May 2022; Ref: scu.410164

John And Mary Gratwick Infants, By William Gratwick Their Guardian v Thomas Freeman Gent: 1673

The Father devised Legacies to his children being Infants, and made their Mother Executrix, and died ; she married again, and died : Upon a Bill brought by the Infants against their Father in Law, to have an Account of the personal Estate of their Father, it was decreed against them, because they did not call him to Account in the Life-time of their Mother.

Citations:

[1673] EngR 54, (1673) Fin H 95, (1673) 23 ER 51 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 02 May 2022; Ref: scu.406236

In Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners: CA 1961

Judges:

Upjohn LJ

Citations:

[1961] Ch 466

Citing:

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

Cited by:

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

Trusts

Updated: 02 May 2022; Ref: scu.402930

Arethusa Lady Dowager Clifford v Earl of Burlington, Lord Clifford and Others: 1680

Tenant for life, with power to make a jointure of andpound;1000 per ann, upon marriage, covenants to make a jointure on his wife of andpound;1000 per ann. Afterwards gives a particular of lands mentioned to be andpound;1000 per ann. which are settled for the jointure, but prove to be but andpound;600 per ann. Decreed the jointure to be made up andpound;1000 per ann. by the issue in tail.
Tenant in tail covenants to settle a jointure and dies, issue in tail not bound by the covenant

Citations:

[1680] EngR 21, (1680-1687) 2 Vern 379, (1680) 23 ER 841

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 02 May 2022; Ref: scu.402232

Proctor v Bulstrode: 7 Feb 1742

LORD CHANCELLOR in this case, that where there is a power to grant a rent charge for life, and the rent is given during widowhood, it is a good execution of the power, for it is an estate for life. Like grant of a jointure during widowhood in bar of dower, it is a good jointure by the statute E27 Hen. VIn. c. 101. Power was to grant an annuity of 250 per annum. Grant of one of andpound;40 per annum is a full execution ; and the extent of it could not after be made up by a subsequent execution for the rest, the first being a complete execution.

Citations:

[1742] EngR 24, (1742) 2 Coop T Cott 534, (1742) 47 ER 1291 (C)

Links:

Commonlii

Trusts

Updated: 02 May 2022; Ref: scu.384197

In re Duke of Marlborough, Davis v Whitehead: 1894

The Duchess assigned her own separate leasehold property to the Duke absolutely in consideration of her natural love and affection for him. This enabled him to raise money on mortgage. The wife’s evidence was that, subject to the mortgage being repaid, the house was to come back to her.
Held: The equity of redemption belonged to the Duchess: ‘the house was transferred to the Duke for the limited purpose of enabling him to borrow money and that, subject to the mortgage created by him, it was intended that the house should continue to belong to the Duchess.’

Judges:

Stirling J

Citations:

[1894] 2 Ch 133

Jurisdiction:

England and Wales

Cited by:

Cited – HSBC Bank Plc v Dyche and Another ChD 18-Nov-2009
The parties disputed the claimed beneficial interest of the second defendant. The second defendant (C) said that it had been purchased for him by the first defendant (D) from C’s trustee in bankruptcy, and was thereafter held in trust for him on the . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 02 May 2022; Ref: scu.384350

Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton: 18 Dec 1816

Citations:

[1816] EngR 865, (1816) 2 Mer 71, (1816) 35 ER 867 (B)

Links:

Commonlii

Citing:

See Also – Earl Cholmondeley v Lord Clinton 1789
A solicitor even though he may not be continuing to act for a particular client, must never be permitted to disclose, to the injury of that client, matters of which he had learned whilst so employed. . .
See Also – The Earl of Cholmondeley v Lord Clinton 17-Jul-1813
. .
See Also – Earl Cholmondeley And Ann Seymour Damer v Lord Clinton And Others 16-Jan-1815
A solicitor for one of the parties in a suit cannot become the solicitor for the opposite party, though he is separated from the partnership which jointly were so employed on the other side, and the remaining partner still continues so employed, and . .
See Also – Earl Cholmondeley v Lord Clinton 3-Feb-1815
An Attorney or solicitor cannot give up his client, and act for the opposite party, in any suit between them. . .

Cited by:

See Also – Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton, Sir Lawrence Palk, And Others 24-Dec-1816
. .
See Also – Marquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton, Francis Drake, Ambrose St John, John Inglett Fortescue, Sir Lawrence Palk (Deceased), William Seymour, And Others 28-Jun-1817
. .
See Also – The Marquis of Cholmondeley v Lord Clinton 1819
Where A, in a conveyance to uses, settled an estate for life on himself, remainder in tail to his issue, with an ultimate limitation to the heirs of SR in fee; and at the time of the settlement A was himself the right heir of SR.
Held: that . .
See Also – Marquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton etc 8-Aug-1820
. .
See Also – Marquis of Cholmondeley v Lord Clinton HL 15-Jun-1821
Equity follows the law . .
Lists of cited by and citing cases may be incomplete.

Trusts, Litigation Practice

Updated: 02 May 2022; Ref: scu.334558

Craigdallie And Others v Aikman And Others: PC 21 Jul 1820

Citations:

[1820] EngR 518, (1820) 2 Bligh PC 529, (1820) 4 ER 435

Links:

Commonlii

Citing:

See Also – Craigdallie v Aikman PC 14-Jun-2013
A chapel was acquired with the subscriptions of a congregation which seceded from the Church of Scotland in 1737 and subsequently split over whether a magistrate might suppress heresy. Each of the rival groups claimed that the chapel belonged to . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 02 May 2022; Ref: scu.330770

Wilson v Wilson and others By Bill Of Revivor; Grosslob others v Same: 1838

Where the payment of rents, in consequence of disputes among the trustees, had been permitted to fall into arrear, on a ‘bill filed by the Plaintiff, who was entitIed to the renta and profits for her life, against the truetees, the Court ordered a receiver to be appointed, and the costs of the suit to be paid by the trustees.

Citations:

[1838] EngR 18, (1838) 2 Keen 249, (1838) 48 ER 624

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 02 May 2022; Ref: scu.312024

Ex Parte Newton: 3 Jun 1841

Where money is in Court under a railway act, previous to being laid out in lands to be settled ” to the like uses,’ the Court will lend its aid to an advantageous purchase beyond the amount of the money in Court; and will direct the extra costs to be paid out of the money in Court.

Citations:

[1841] EngR 743, (1841) 4 Y and C Ex 518, (1841) 160 ER 1112 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 02 May 2022; Ref: scu.308921

Campbell v Campbell: 8 May 1844

Executors were directed to apply a competent part of the interest of a fund towards the maintenance and education of the testator’s son, during his minority, and accumulate the rest; and, after attaining twenty-one, to apply a moiety of the dividends for his support till he attained twenty-five, and to transfer the fund at twenty-five, with a gift over if he died between twenty-one and twenty-five. The son attained twenty-one between the periods of paymerit of the half-yearly dividends. Held, that there should be no apportionment, and that he was entitled to the whole half-yearly dividend received after he came of age.

Citations:

[1844] EngR 536 (A), (1844) 7 Beav 482

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 02 May 2022; Ref: scu.305128

Lyon v Baker: 30 Jun 1852

In a suit by a trustee against his co-trustee, a solicitor, and the parties beneficially interested under a will, some of them being infants, the costs of all parties had been ordered to be taxed and paid. It appeared that the Defendant trustee, the solicitor, had conducted his defence by his partner. The Taxing Master allowed the solicitor trustee costs out of pocket only. Held, that the rule which had allowed to solicitor trustees costs out of pocket only being well established, the Court would not, with reference to the question of costs, inquire whether the conduct of the suit by the partner of the solicitor trustee was beneficial for all parties, though no party objected to such inquiry, but that all costs beyond those out of pocket must be disallowed.

Judges:

Sir James Parker VC

Citations:

[1852] EngR 796 (A), (1852) 5 De G and Sm 622

Links:

Commonlii

Trusts, Legal Professions, Costs

Updated: 02 May 2022; Ref: scu.295919

The Trusts of Waite’s Will Ex parte Pugh: 2 Jul 1852

As between the husband’s creditors and the wife, in respect of the wife’s equity for a settlement, the Court will, under circumstances, give the wife more than one-half; and where the wife had been at the time of the marriage and long afterwards in circumstances of comfort, and was reduced to distress by the husband’s embarrassments, the Court gave the costs of the Petitioner and of the husband’s assignees out of the fund, which was andpound;681, andpound;400 to the wife, and the remainder to the Petitioner ; the wife’s costs out of her own fund.

Citations:

[1852] EngR 803, 11 Vict c 96, (1852) 61 ER 428

Links:

Commonlii

Trusts, Family

Updated: 02 May 2022; Ref: scu.295926

Wilding v Bolder: CA 22 Dec 1855

The Master of the Rolls, except in cases of absolute necessity, will not appoint a near relative of the parties interested to be a trustee.
Mr. Cairns appeared in support of a petition to appoint new trustees, one of whom was related to the cestuis que trust.
The Master of the Rolls said: ‘I cannot depart from the rule I have adopted of not appointing a near relative a trustee, unless I find it absolutely impossible to get someone unconnected with the family to undertake that office.
I have always observed that the worst breaches of trust are committed by relatives who are unable to resist the importunities of their cestuis que trust, when they are nearly related to them.

Judges:

Sir John Romilly MR

Citations:

[1855] EngR 935 (A), (1855) 21 Beav 222

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 02 May 2022; Ref: scu.292857

Clarke v Woodward: 17 Apr 1858

A fund in Court belonged in reversion to a married woman. After her death the husband, in 1821, sold arid assigned it. The tenant for life died, arid it having been found impossible to obtairi from him an affidavit of no settlement, the Court, in 1858, orclerecl payment to the assigtiee without one, on proof of there having
been no children.

Citations:

[1858] EngR 547, (1858) 25 Beav 455, (1858) 53 ER 710

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 02 May 2022; Ref: scu.289018

Willeter v Dobie: 23 Jun 1856

A married woman, by her will, in exercise of a power of appointment over trust moneys, made several bequests, and ‘after payment of her just debts, funeral and testamentary expenses, and the expenses attending the execution of her will, appointed’ the residue of the trust moneys among her nieces.
Held: The charge of funeral expenses was not contingent upon her surviving her husband, and that her husband surviving was entitled to repayment, out of the trust moneys, of money paid by him in respect of such expenses.

Citations:

[1856] EngR 706, (1856) 2 K and J 647, (1856) 69 ER 942

Links:

Commonlii

Trusts, Wills and Probate

Updated: 02 May 2022; Ref: scu.291461

Knight v Bowyer: 1 Aug 1859

Citations:

[1859] EngR 908, (1859) 4 De G and J 619, (1859) 45 ER 241

Links:

Commonlii

Citing:

See Also – Knight v Bowyer 7-May-1858
knight_bowyer1858
The doctrine of laches and delay did not apply to an express trust, save possibly where there was a release or abandonment by the beneficiary and that was capable of being presumed from the facts of the case. . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Updated: 02 May 2022; Ref: scu.288260

The London Chartered Bank of Australia v William George Lempriere And Others: 6 Feb 1873

The property of a married woman, settled by an ante-nuptial Settlement for her separate use for life, with remainder as she should by Deed or Will appoint, with remainder in failure of appointment to her Executors or Administrators, is an absolute settlement for her sole and separate use, without restraint or anticipation, and vests in equity the entire corpus in her for all purposes.

Citations:

[1873] EngR 3, (1873) 9 Moo PC NS 426, (1873) 17 ER 574

Links:

Commonlii

Family, Trusts

Updated: 02 May 2022; Ref: scu.280087

Baboo Lekraj Roy, Baboo Mahtab Chand And Others: PC 14 Dec 1871

Suit against the Guardians of a Minor, to recover moneys alleged to be due from the estate of the Minor’s Father. The Guardians compromised the suit and the Deed of Compromise were confirmed by the Court. After sixteen years, the Minor, being then of age, brought a suit against the Guardians to recover the mount paid under the Deed of compromise, alleging that the former suit was a, fictitious one, and the compromise fraudulent and collusive between the Plaintiff and his Guardians. On appcal, held, by the Judicial Committee, reversing the judgments of the Courts in India, (1) that, in the circumstances, the Guardians, in their discretion, were justified in making the compromise to protect the Infant’s estate, and (2) that the burthen of proving the allegation that the former suit was fictitious and collusive, was upon the Plaintiff, and in the absence of any such evidence by him that no debt was due from the Father’s estate, the onus probandii was not shifted on the Defandants to negative, such allegations.

Citations:

[1871] EngR 58, (1871) 14 Moo Ind App 393, (1871) 20 ER 833

Links:

Commonlii

Children, Trusts, Litigation Practice

Updated: 02 May 2022; Ref: scu.280239

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: ‘Trustees are entitled to be indemnified out of the capital and income of their trust fund against all obligations incurred by the trustees in the due performance of their duties and the due exercise of their powers. The trustees must then debit each item of expenditure either against income or against capital. The general rule is that income must bear all ordinary outgoings of a recurrent nature, such as rates and taxes, and interest on charges and incumbrances. Capital must bear all costs, charges and expenses incurred for the benefit of the whole estate.’ and
‘In the present appeals, the appellant trustees of the Paul settlement paid the annual premiums on assurance policies effected by the trustees in order to obtain policy moneys corresponding to the amount of capital transfer tax payable out of the trust fund in the event of the death of the settlor before 20 November 1979. The appellant trustees of the Devonshire settlement paid the annual premiums on endowment policies assigned to the trustees and on other endowment policies effected by the trustees. All these premiums were paid by the Paul settlement trustees and the Devonshire settlement trustees for the benefit of the whole of their respective trust funds because the capital of the trust will be augmented by the policy moneys which will be received if and when the policies mature, and the income of the trust will be increased as and when such augmentation of capital takes place, but not before that event takes place.’ and
‘The Devonshire settlement trustees also paid annual fees to a firm of investment advisers to keep under review and to advise changes in investments comprised in the trust fund. This was a recurrent charge but not an ordinary outgoing and was incurred for the benefit of the estate as a whole because the advice of the investment advisers will affect the future value of the capital of the trust fund and the future level of income arising from that capital.’

Judges:

Lord Templeman, Lord Fraser of Tullybelton, Lord Roskill and Lord Brandon of Oakbrook

Citations:

[1985] 1 AC 1082

Statutes:

Finance Act 1973 16(2)(d)

Jurisdiction:

England and Wales

Citing:

Approved – 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 . .

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

Income Tax, Trusts

Updated: 02 May 2022; Ref: scu.279008

Re Thompson’s Settlement: 1985

Company shares were held in trust for the grandchildren of the settlor whose two sons were the trustees who effectively ran the company. The plaintiffs proposed the transfer of trust property to the company. The beneficiaries said that such a transaction was voidable at their instance since it breached the rule against self dealing.
Held: The rule was to be strictly applied where the trustees’ concurrence was required in a transaction in which he had an interest. Without an express authorisation in the trust instrument, such a transacion could not stand against the challenge of a beneficiary.

Judges:

Vinelott J

Citations:

[1986] Ch 99, [1985] 2 All ER 721

Jurisdiction:

England and Wales

Cited by:

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

Trusts

Updated: 02 May 2022; Ref: scu.277072

Re Freiburg Trust: 2004

(Jersey)

Citations:

[2004] JRC 056, (2003-04) 6 ITELR 1078

Jurisdiction:

England and Wales

Cited by:

Cited – Gomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 01 May 2022; Ref: scu.276696

Re: Gibson’s Settlement Trusts; Mellor v Gibson: 1981

Settlement trustees undertook to execte a deed appointing trust moneys to the settlor’s children. The beneficiaries were not content with the proposed deed, and the trustees sought directions.
Held: The undertaking was invalid as a fetter on the trustees’ discretion. As to the costs of the application, the costs of the trustees incurred before the dismssal were payable from the trust.

Judges:

Megarry J VC

Citations:

[1981] Ch 179, [1981] 2 WLR 1, [1981] 1 All ER 233

Jurisdiction:

England and Wales

Cited by:

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

Trusts, Costs

Updated: 01 May 2022; Ref: scu.277069

ATC (Cayman) v Rothschild Trust Cayman Ltd: 2007

(Grand Court of the Cayman Islands) The court considered a proposed undertaking by successor trustees to their predecessors not to distribute a proportion of the trust fund for as long as it was required to meet the outgoing trustees’ entitlement to an indemnity.
Held: Such an undertaking, giving effect to the retiring trustees’ entitlement to an indemnity and lien, was, although restrictive of the successor trustees’ discretionary powers, plainly not an illegitimate fetter on their discretion. The rule preventing a trustee from fettering his future exercise of a discretion given to him under the trust was not universal.

Judges:

Smellie CJ

Citations:

[2007] WTLR 951

Jurisdiction:

Commonwealth

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: 01 May 2022; Ref: scu.277071

Paragon v Thakerer: 1993

A claim for fraudulent or intentional breach of trust/fiduciary duty is a different cause of action from a claim for breach of trust/fiduciary duty generally and must be separately and distinctly pleaded.

Citations:

[1993] 1 All ER 400

Jurisdiction:

England and Wales

Cited by:

Cited – Berezovsky v Abramovich ComC 22-May-2008
Applications were made to amend pleadings and for consequential orders. The claimant sought damages of $4.3 billion alleging breach of trust. The claimant sought to add claims which the defendant said were out of time.
Held: The proposed . .
Lists of cited by and citing cases may be incomplete.

Trusts, Torts – Other, Litigation Practice

Updated: 01 May 2022; Ref: scu.268053

Shalson and others v Russo and others: ChD 11 Jul 2003

Rimer J doubted obiter comments of Lord Brown-Wilkinson: ‘I do not find that an easy passage. As to the first paragraph, a thief ordinarily acquires no property in what he steals and cannot give a title to it even to a good faith purchaser: both the thief and the purchaser are vulnerable to claims by the true owner to recover his property. If the thief has no title in the property, I cannot see how he can become a trustee of it for the true owner: the owner retains the legal and beneficial title. If the thief mixes stolen money with other money in a bank account, the common law cannot trace into it. Equity has traditionally been regarded as similarly incompetent unless it could first identify a relevant fiduciary relationship, but in many cases of theft there will be none. The fact that, traditionally, equity can only trace into a mixed bank account if that precondition is first satisfied provides an unsatisfactory justification for any conclusion that the stolen money must necessarily be trust money so as to enable the precondition to be satisfied. It is either trust money or it is not. If it is not, it is not legitimate artificially to change its character so as to bring it within the supposed limits of equity’s powers to trace: the answer is to develop those powers so as to meet the special problems raised by stolen money.
111. As to Lord Browne-Wilkinson’s more general proposition in the second paragraph that property obtained by fraud is automatically held by the recipient on a constructive trust for the person defrauded, I respectfully regard the authorities he cites as providing less than full support for it. At any rate, they do not in my view support the proposition that property transferred under a voidable contract induced by fraud will immediately (and prior to any rescission) be held on trust for the transferor.’

Judges:

Rimer J

Citations:

[2003] EWHC 1637 (Ch), [2005] Ch 281, [2005] 2 WLR 1213

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Obiter comments doubted – Westdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .

Cited by:

Preferred – Scott v Bridge and Others ChD 25-Nov-2020
Claim to recover money and property said to have been transferred by the claimant to the defendants or one or more of them. The money concerned came from a bank account belonging to the claimant. The property concerned consisted of two . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Trusts

Updated: 01 May 2022; Ref: scu.263724

Jones v Maynard: 1951

Former spouses disputed the division of property.
Held: It was appropriate to apply the priciple of equality. The maxim that ‘equality is equity’ provides no more than a fall-back position where no other basis of division is appropriate.

Citations:

[1951] Ch 572

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.

Trusts, Equity

Updated: 01 May 2022; Ref: scu.251497

Attorney General v Webster: 1875

A trust expressed to be for the benefit of a fluctuating body of individuals, such as the inhabitants of a locality, can only take effect as a charitable trust, if it has effect at all.

Citations:

(1875) LR 20 Eq 483

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.

Charity, Trusts

Updated: 01 May 2022; Ref: scu.247689

In re Moxon: 1916

Under the statutory power of appointing new trustees out of court, the public trustee could be appointed and act even though the instrument might require a minimum of two trustees to act. The section was ‘not merely by way of addition o the statutory powers, but is a positive and independent enabling the appointment of the Public Trstee on every occasion on which a private trustee could be appointed.’ and ‘Subsection (1) enables the Public Trustee to be appointed in all cases as the sole trustee.’

Judges:

Sargant J

Citations:

[1916] 2 Ch 595

Statutes:

Public Trustee Act 1906 5(1)

Cited by:

Cited – In Re Duxbury’s Settlement Trusts CA 21-Nov-1994
The Public trustee appealed against an order which had recognised his appointment under the 1959 trust, but had held that because of the explicit prohibition in the trust instrument against a trustee acting alone, he could not act.
Held: . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 01 May 2022; Ref: scu.247495

Earle v Bellingham: 24 Jul 1857

The right to receive legacies charged on a reversionary legacy payable under the will of another was not a present right to receive them until the reversionary legacy fell into possession on the death of the life tenant.

Citations:

(1857) 24 Beav 448, [1857] EngR 795 (B), (1857) 24 Beav 445

Links:

Commonlii

Cited by:

Cited – Hornsey Local Board v Monarch Investment Building Society CA 1889
The local authority had incurred expense in paving a street. They were entitled to apportion those expenses amongst the owners of the properties fronting onto that street and summarily to recover from the respective owners the amounts so . .
Cited – Gotham v Doodes CA 25-Jul-2006
The former bankrupt resisted sale of his property by the trustee, saying that enforcement was barred by limitation. He and his wife bought the property in early 1988, and he was made bankrupt in October 1988. He was dischaged from bankruptcy in . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 01 May 2022; Ref: scu.244735

Re Burney’s Settlement Trusts: ChD 1961

The court approved a proposed variation of a trust.

Judges:

Wilberforce J

Citations:

[1961] 1 WLR 545, [1961] 1 All ER 856

Jurisdiction:

England and Wales

Cited by:

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

Trusts

Updated: 01 May 2022; Ref: scu.241674

In Re Holt’s Settlement: ChD 1969

An application was made to vary the terms of a trust in favour of children.
Held: The court was ready to receive evidence from a mother whose children were due to become entitled to funds at the age of 21 that she believed it most important that young people should be reasonably advanced in a career and settled in life before they were in receipt of an income sufficient to make them independent of the need to work. Megarry J, ‘speaking in general terms’ fully concurred, and approved an arrangement which postponed vesting of their interests.

Judges:

Megarry J

Citations:

[1969] 1 Ch 100

Jurisdiction:

England and Wales

Cited by:

Cited – Goulding and Goulding v James and Daniel CA 10-Dec-1996
The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court’s approval was necessary. The judge had refused to approve the . .
Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Trusts, Children

Updated: 01 May 2022; Ref: scu.241670

Re Van Gruisen’s Will Trusts: ChD 1964

The court considered the extent of its discretion to vary the provisions of a trust.
Held: The Court should ask whether, if the persons on whose behalf consent is to be given were themselves competent and reasonable, the bargain is one that they would enter It does not follow from the fact of benefit to unborns that the arrangement must be approved.
Ungoed-Thomas J said: ‘It is shown that actuarially the provisions for the infants and unborn persons are more beneficial for them under the arrangement than under the present trusts of the will. But that does not conclude the case. The court is not merely concerned with this actuarial calculation, even assuming that it satisfies the statutory requirement that the arrangement must be for the benefit of the infants and unborn persons. The court is also concerned whether the arrangement as a whole, in all the circumstances, is such that it is proper to approve it. The court’s concern involves, inter alia, a practical and businesslike consideration of the arrangement, including the total amounts of the advantages which the various parties obtain, and their bargaining strength.’

Judges:

Ungoed-Thomas J

Citations:

[1964] 1 WLR 449

Jurisdiction:

England and Wales

Cited by:

Cited – Goulding and Goulding v James and Daniel CA 10-Dec-1996
The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court’s approval was necessary. The judge had refused to approve the . .
Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 01 May 2022; Ref: scu.241676

Re Weston’s Settlement Trusts: CA 1968

The settlor applied for the approval of an arrangement for the export of his trust to Jersey, where he had gone to live. The court considered its powers under the 1968 Act.
Held: The court should not consider merely the financial benefit to the infants or unborn children, but also their educational and social benefit. There were many things in life more worthwhile than money. In this case, his Lordship found that it was not for the benefit of children to be uprooted from England and transported to another country simply to avoid tax.
Lord Denning MR said: ‘In exercising its discretion, the function of the court is to protect those who cannot protect themselves.’ The proposed variation was not for the benefit of the specified class and the court refused to approve it.
Beneficiaries who are sui juris and together absolutely entitled to the trust property have the right to defeat the intention of the settlor by varying or revoking the trust as they see fit.

Judges:

Lord Denning MR

Citations:

[1969] 1 Ch 223, [1968] 3 All ER 338

Statutes:

Variation of Trusts Act 1958 1

Jurisdiction:

England and Wales

Cited by:

Cited – Goulding and Goulding v James and Daniel CA 10-Dec-1996
The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court’s approval was necessary. The judge had refused to approve the . .
Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 01 May 2022; Ref: scu.241677

In Re Remnant: ChD 1970

Approval was sought of a proposed deed varying trusts created in the will.
Held: The testator’s intention would be defeated by the proposed arrangement which involved the deletion of the forfeiture provision dependant upon the beneficiary’s practice of the Roman Catholic faith. Pennycuick J said: ‘That was serious but by no means a conclusive consideration’. The forfeiture provision plainly expressed a strongly held wish on the part of the testator as to who should not benefit under his will. The court agreed to approve the variation, because it was beneficial to all concerned.

Judges:

Pennycuick J

Citations:

[1970] 1 Ch 560

Jurisdiction:

England and Wales

Cited by:

Cited – Goulding and Goulding v James and Daniel CA 10-Dec-1996
The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court’s approval was necessary. The judge had refused to approve the . .
Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 01 May 2022; Ref: scu.241675

Spens v Inland Revenue Commissioners: ChD 1970

The court declared the exercise of a power of appointment to create a sub-trust void under the rule against perpetuities.

Judges:

Megarry J

Citations:

[1970] 1 WLR 1173, [1970] 3 All ER 295

Jurisdiction:

England and Wales

Cited by:

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

Trusts

Updated: 01 May 2022; Ref: scu.241672

Richard v Mackay: 1997

In construing a trust deed, it is not the task of the court to say how it would exercise any discretion given, but ‘ . . to ensure that the proposed exercise of the trustees’ powers is lawful and within the power and that it does not infringe the trustees’ duty to act as ordinary, reasonable and prudent trustees might act, but it requires only to be satisfied that the trustees can properly form the view that the proposed transaction is for the benefit of beneficiaries or the trust estate.’ and ‘It must be borne in mind that one consequence of authorising the trustees to exercise a power is to deprive the beneficiaries of any opportunity of alleging that it constitutes a breach of trust and seeking compensation for any loss which may flow from that wrong. Accordingly the court will act with caution in such a case . . ‘

Judges:

Millett J

Citations:

(1997) 11 Tru LI 23

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: 01 May 2022; Ref: scu.237751

In re Diplock: CA 1948

S 26 of the Act of 1939 would operate to postpone the running of time in the case of an action at common law to recover money paid under a mistake of fact, and would likewise apply to an analogous claim in equity to recover money paid under a mistake of law.
Lord Greene MR said: ‘It is to be observed that neither Lord Parker nor Lord Haldane [in Sinclair v Brougham [1914] AC 398] suggests that the equitable remedy extends to cover all cases where A becomes possessed of money belonging to B, a view which Lord Dunedin [in the same case] seemed inclined to accept if he did not actually do so. Lord Parker and Lord Haldane both predicate the existence of a right of property recognized by equity which depends upon there having existed at some stage a fiduciary relationship of some kind (though not necessarily a positive duty of trusteeship) sufficient to give rise to the equitable right of property. Exactly what relationships are sufficient to bring such an equitable right into existence for the purposes of the rule which we are considering is a matter which has not been precisely laid down. Certain relationships are clearly included, eg, trustee (actual or constructive) and cestui que trust; and ‘fiduciary’ relationships such as that of principal and agent.’

Judges:

Lord Greene MR

Citations:

[1948] Ch 465

Statutes:

Limitation Act 1939 26

Jurisdiction:

England and Wales

Cited by:

Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – Scott v Bridge and Others ChD 25-Nov-2020
Claim to recover money and property said to have been transferred by the claimant to the defendants or one or more of them. The money concerned came from a bank account belonging to the claimant. The property concerned consisted of two . .
Lists of cited by and citing cases may be incomplete.

Limitation, Trusts

Updated: 01 May 2022; Ref: scu.236539

Sifton v Sifton: PC 1938

(Canada) The court considered the validity of a gift in a will challenged for uncertainty, in this case a condition as to residency within a country.
Held: Lord Romer said that the meaning of such words as reside or residence, ‘obviously depends upon the context in which the words are used’ and ‘Where it is doubtful whether a condition be precedent or subsequent the Court prima facie treats it as being subsequent. For there is a presumption in favour of early vesting.’

Judges:

Lord Romer

Citations:

[1938] AC 656, [1939] 1 All ER 109

Citing:

Cited – Clavering v Ellison 1859
Any provision determining or divesting an estate held on trust ‘must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine’ . .
Lists of cited by and citing cases may be incomplete.

Trusts, Commonwealth

Updated: 30 April 2022; Ref: scu.231641

In re Lysaght (deceased): 1966

A general charitable purpose (or intention) should be recognised and given effect to, even though some particular directions given by the charity’s founder are (or become) impracticable.

Judges:

Buckley J

Citations:

[1966] Ch 191

Jurisdiction:

England and Wales

Cited by:

Cited – Fraser and Another v Canterbury Diocesan Board of Finance and others HL 27-Oct-2005
Land had been acquired by a deed under the 1841 Act, but had in 1995 ceased to be used as a school ‘for the education of children and adults of the labouring manufacturing and other poorer classes . . And for no other purpose ‘. Under the Act, the . .
Lists of cited by and citing cases may be incomplete.

Trusts, Charity

Updated: 30 April 2022; Ref: scu.231639

Farrer v Farrer’s Ltd: 1888

A sale by a mortgagee to a company of which he was a director and shareholder was held to be effective to extinguish the equity of redemption, but only because the sale was negotiated between the mortgagee and the other directors at arms’ length. A sale by a mortgagee to a company of which he was sole director and only shareholder would be ineffective. A power of sale does not authorise the donee of the power to take the property at a price fixed by himself. If the sale is unauthorised, it cannot affect the beneficial interests.

Judges:

Lindley LJ

Citations:

(1888) 40 ChD 395

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: 30 April 2022; Ref: scu.223774

Burnley etc Textile Union v ATWU: 1986

Citations:

[1986] 1 All ER 885

Jurisdiction:

England and Wales

Cited by:

Cited – The Free Church of Scotland v The General Assembly of the Free Church of Scotland SCS 24-Mar-2005
Each group claimed to by the true Free Church of Scotland. The dispute had a very long history. One claimed that the other had abandoned a fundamental principle of the faith, the right of ‘continued protest’.
Held: It was necessary to examine . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 30 April 2022; Ref: scu.223945

The Ferguson Bequest Fund Case: 1879

The court was asked to look at the sharing of an income stream where a testator intended to benefit a number of voluntary churches.
Held: The court gave useful guidance as to options available when competing bodies were deemed still to be under the umbrella of the intention of the trust.
Lord President Inglis said: ‘. . Where two parties, in the position of those now before us, each claim exclusive right to the property of the religious association to which they both originally belonged it is sometimes impossible to decide the question of property so raised without inquiring which party has adhered to and which has departed from the doctrines and rules of the association. And the same occurs where a particular congregation, having separated itself from the rest of the body, claims to retain the buildings or other property occupied by the congregation, but held on titles permanently connecting the property with the society or church, and justifies its separation on the ground that the majority of the body have renounced or departed from the articles of belief or general laws which formed the bond of union. In such cases it must be observed that the claim is based on allegations of breach of contract, that the subject in dispute is matter of civil and patrimonial right, and that the court cannot decide that question of right without reading and interpreting the contract which imposes on the members adherence to particular doctrines, laws, or usages as conditions of membership of the association …’

Judges:

Lord Shand, Lord President Inglis

Citations:

(1879) 6 R 486

Cited by:

Cited – The Free Church of Scotland v The General Assembly of the Free Church of Scotland SCS 24-Mar-2005
Each group claimed to by the true Free Church of Scotland. The dispute had a very long history. One claimed that the other had abandoned a fundamental principle of the faith, the right of ‘continued protest’.
Held: It was necessary to examine . .
Lists of cited by and citing cases may be incomplete.

Scotland, Trusts, Ecclesiastical

Updated: 30 April 2022; Ref: scu.223941

In Re Brockbank: 1948

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

Judges:

Vaisey J

Citations:

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

Statutes:

Trustee Act 1925

Cited by:

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

Trusts

Updated: 30 April 2022; Ref: scu.223771

Lewis v Hillman: 1852

A sale by a sole trustee to his nominee posing as a bona fide purchaser was held to be incapable of overreaching the interests of the beneficiaries. It was ‘powerless for that purpose’.

Judges:

Lord St. Leonard

Citations:

(1852) 3 HLC 607

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: 30 April 2022; Ref: scu.223772