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 trust. Unfortunately it was done in such a way as to create an immediate liability to Inheritance Tax. In each case the trustees applied to have the ineffective deeds declared void to correct the mistakes. They were set aside, but the Court of Appeal allowed the Revenue’s appeals on the basis that the rule in Hastings-Bass (the Rule) applied at first instance.
Held: As to the appeals under the Rule, the taxpayers’ appeals failed. However P’s appeal on the basis of mistake was allowed.
The Rule applied to a failure of trustees to perform a decision making function. In such situations there had to such a serious failure as to amount to a breach of the trustees’ fiduciary duties. In each of these cases, they had acted on professional advice, but the failures of such advisers could not be transferred to the trustees so as to allow the application of the Rule. Nevertheless the Rule had to be applied respecting each different factual situation, and other results might be reache din future in settling the balance between the need to protect beneficiaries, and for legal certainty without imposing too rigid a test on trustees.
As to the rescision for mistake in P’s case, there had to be a mistake which was both of sufficient gravity and causative of the failing. Such a mistake may well be as to the legal character of the transaction, and tax consequences go as to the gravity of the error. Mere ignorance would be insufficient. The court would have to conclude that it would be unconscionable or injust to leave the situation uncorrected.
Lord Walker said: ‘Rectification is a closely guarded remedy, strictly limited to some clearly established disparity between the words of a legal document, and the intentions of the parties to it. It is not concerned with consequences.’

Lord Neuberger, President, Lord Walker, Lady Hale, Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath
[2013] 3 All ER 429, [2013] UKSC 26, [2013] WLR (D) 172, [2013] STC 1148, 15 ITELR 976, 81 TC 912, [2013] 2 WLR 1200, [2013] STI 1805, [2013] WTLR 977, [2013] Pens LR 195, [2013] BTC 126, [2013] 2 AC 108
Bailii, Bailii Summary, SC Summary, SC, WLRD
Taxation of Chargeable Gains Act 1992 2(4)
England and Wales
At First InstanceFutter 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 . .
CitedAbacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr ChD 6-Feb-2003
The court considered the Rule in Hastings-Bass, and specifically (1) whether the trustee’s decision is open to challenge when the failure to take a consideration into account is not attributable to a breach of fiduciary duty on the part of the . .
CitedGibbon 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 . .
CitedRe Hastings-Bass; Hastings v Inland Revenue CA 14-Mar-1974
Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the . .
CitedMettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
CitedStannard v Fisons Ltd; Stannard v Fisons Pensions Trust CA 2-Jan-1990
The purchaser of a business said that the company had made insufficient contributions to its pensions fund before the transfer, and sought payment of the sums underpaid. The defendants argued that, applying Hastings-Bass, unless that principle were . .
Appeal fromPitt and Another v Holt and Another CA 9-Mar-2011
. .
At First InstancePitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .
CitedScott v The National Trust CA 1998
Trustees, in the exercise of their fiduciary discretions, are under constraints which do not apply to adult individuals disposing of their own property. Walker LJ said: ‘Certain points are clear beyond argument. Trustees must act in good faith, . .
CitedEdge and others v Pensions Ombudsman and Another CA 29-Jul-1999
The Pensions Ombudsman was wrong to set aside the decision of pensions trustees where that decision was properly made within the scope of a discretion given to the Trustees. He should not carry out an investigation where no particular benefit could . .
CitedOgilvie v Littleboy CA 1897
Lindley LJ discussed the variation of a gift for mistake: ‘Gifts cannot be revoked, nor can deeds be set aside, simply because the donors wish they had not made them and would like to have back the property given. Where there is no fraud, no undue . .
CitedOgilvie v Allen HL 1899
The plaintiff, a widow, had executed deeds founding two charities and devoting to them a considerable part of the large fortune which she had inherited from her husband, but later brought proceedings to set the deeds aside asserting that she had not . .
CitedDirector of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith HL 12-Jul-1990
Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when . .
CitedMarshall v NM Financial Management Ltd ChD 10-Jul-1995
A post-termination restriction on an employment was in restraint of trade and ineffective despite a payment having been made for the restriction. The agent was not entitled to any commission after termination under the relevant clause.
Mr . .
CitedNM Financial Management Limited v Marshall CA 13-Mar-1997
The court considered a provision that a commission agent would be paid commission following the termination of his agency provided that he did not within a year become an independent intermediary or work for a competitor. Here the suspension of . .
CitedEquitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
MentionedWollaston v King 1869
Rectification for mistake . .
CitedIn Re Vestey’s Settlement ChD 1950
The income of a fund was to be held on trust for the support or benefit of the members of a class as the trustees might decide in their discretion. The trustees resolved in each of three successive periods to distribute part of the income to certain . .
CitedIn Re Vestey’s Settlement CA 2-Jan-1951
The trustees of a large settlement made by Lord Vestey and his brother Sir Edmund Vestey exercised their discretion over the allocation of income with the apparent intention of income being accumulated during the minorities of a number of . .
CitedIn 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 . .
CitedSieff v Fox ChD 23-Jun-2005
The advisers to trustees wrongly advised the trustees about the tax consequences of exercising a power of appointment in a certain way. As a result a large unforeseen Capital Gains Tax liability arose. The trustees sought to set aside the . .
CitedAbacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr ChD 6-Feb-2003
The court considered the Rule in Hastings-Bass, and specifically (1) whether the trustee’s decision is open to challenge when the failure to take a consideration into account is not attributable to a breach of fiduciary duty on the part of the . .
CitedIn 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’. . .
CitedIn re Buckton’s Settlement Trusts 1964
. .
CitedIn re Abrahams’ Will Trusts 1969
The trustees sought to mitigate estate duty by terminating a life interest, and accelerating the interest fo the next generation.
Held: There had been no valid exercise of the power of advancement. Cross J rejected an argument approximating an . .
CitedVestey v Inland Revenue Commissioners (No 2) ChD 1979
The Commissioners of Inland Revenue do not have, any more than does any other emanation of the Crown, any power to suspend or dispense with laws. ‘It is at this point that there arises what Mr Potter, for the taxpayers, has denominated as a serious . .
CitedOgden and Another v Trustees of the RHS Griffiths 2003 Settlement and others; In Re Griffiths deceased ChD 25-Jan-2008
A life-time transfer which had been made under a mistake as to the donor’s chances of surviving long enough for the transfer to be exempt from Inheritance Tax was set aside. Unbeknown to the donor, he had lung cancer at the time.
Held: Lewison . .

Cited by:
CitedBainbridge and Another v Bainbridge ChD 22-Apr-2016
. .
CitedFSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
CitedBank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .

Lists of cited by and citing cases may be incomplete.

Trusts, Taxes Management, Equity

Leading Case

Updated: 10 November 2021; Ref: scu.503501