Mortgage Corporation Ltd v Shaire and Another: ChD 25 Feb 2000

The claimant had an equitable charge over the property, and sought a possession order after failures to keep up repayments. The order was sought under the Act, and the claimants asserted that the conditions for the grant of possession were unchanged.
Held: Parliament had clearly intended a change. The interests of a chargee ranked alongside those of, for example, children living in the house. This might act to the detriment of banks, and the old authorities, whilst not entirely irrelevant, should be viewed with caution. Where the parties have reached a consensus on the beneficial interests in the property, the court will give effect to it, unless there is very good reason for not doing so, such as a subsequent renegotiation.

Judges:

Neuberger J

Citations:

Gazette 16-Mar-2000, Times 21-Mar-2000, [2000] 1 FLR 973, [2001] Ch 743, [2000] EWHC Ch 452

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996 14 15, Law of Property Act 1925 30

Cited by:

CitedStack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
CitedStack 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.

Land, Banking, Trusts

Updated: 19 May 2022; Ref: scu.83867

Clarke (Executor of the Will of Francis Bacon, Deceased) v Marlborough Fine Art (London) Ltd and Another: ChD 5 Jul 2001

Francis Bacon sold his paintings through the defendant agents for many years. The original contractual arrangement grew into a fiduciary one. The claimants asserted that the defendants were in breach of that fiduciary duty, the defendants asserted that the relationship remained contractual, and that it was now time barred.
Held: There may be a true constructive trust which would not be time barred, rather than a remedial constructive trust. The test was whether the trustee was a true trustee, whether of a constructive or an express trust. Nor was it clear that a court of equity would have time barred a claim in undue influence.

Judges:

Patten J

Citations:

Times 05-Jul-2001

Statutes:

Limitation Act 1980 36(1)(f)

Cited by:

CitedMcLaughlin and Others v Newall QBD 31-Jul-2009
The claimant asked the court to strike out the defence that the claimant had compromised his claim by agreement. The defendant had written letters critical of the claimants who were governors of a school which had disciplined his daughter a teacher . .
Lists of cited by and citing cases may be incomplete.

Agency, Trusts, Limitation

Updated: 19 May 2022; Ref: scu.79197

Bath and Wells Diocesan Board of Finance and Another v Jenkinson and Others: ChD 6 Sep 2000

Where there was a gift of land on charitable trusts, but where the gift was first expressed to be unlimited in time, but later in the deed provided powers for revocation, and conditions for defeasance, it must remain a matter of construction of the particular deed to decide whether the gift was in perpetuity. In the current cases the reversionary provisions were void for remoteness, and the trustees had acquire a possessory title for charity on the trusts of the original deeds.

Citations:

Times 06-Sep-2000, Gazette 05-Oct-2000

Land, Charity, Trusts

Updated: 18 May 2022; Ref: scu.78288

In re Dartnall: CA 1895

Citations:

[1895] 1 Ch 474

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 May 2022; Ref: scu.567853

In Re Skinner: ChD 1904

A beneficiary of a will trust brought an action for an account, having had little or no accounting from the executors and trustees (one a professional solicitor, entitled to charge) since the testator died more than two years before the action was commenced. The court made a full administration order, and the question whether the executor trustees should pay the costs was reserved.
Held: After further argument, Farwell J held that the plaintiff was entitled to her costs. He said: ‘The gist of the complaints against the defendants . . is that they would not, and did not, render any proper accounts, though repeatedly requested to do so by the plaintiff and by . . their co-executor. Now it is clear that in the case of a small estate like this it is very hard that the plaintiff should be obliged to have recourse to proceedings of this nature in order to get an account. I am always unwilling to make trustees pay costs; but, on the other hand, beneficiaries have a right to expect the performance of their duty by executors, and not the less when one of them has power to make professional charges. In my opinion the conduct of these two defendants amounts to a gross neglect to account. ‘

Judges:

Farwell J

Citations:

[1904] 1 Ch 289

Citing:

AppliedHeugh v Scard CA 1875
Sir George Jessel MR said: ‘In certain cases of mere neglect or refusal to furnish accounts, when the neglect is very gross or the refusal wholly indefensible, I reserve to myself the right of making the executor or trustee pay the costs of . .

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
CitedBlades v Isaac and Another ChD 21-Mar-2016
Claim by beneficiary under discretionary trust.
Held: A trustee’s wrongful failure to provide information does not necessarily justify an adverse costs order. . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 May 2022; Ref: scu.567857

Re Cowin: 1886

Citations:

(1886) 33 ChD 179

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 May 2022; Ref: scu.567854

Nestle v National Westminster Bank: ChD 1988

The plaintiff was the remainder beneficiary under the will trust of her grandfather, who died in 1922. The trust fund was then worth about andpound;50,000. The last outstanding life interest under the trust was that of her father John, who died in 1986. Thereafter she was absolutely entitled to the trust fund, by that time worth some andpound;269, 203. The plaintiff complained that, after adjusting the 1922 value for changes in the retail prices index to date, it should have been worth about andpound;1 million. She further said that, if adjusted for increases in the ordinary shares index on the stock market, that part of the fund which her grandfather had invested in ordinary shares would have been worth over andpound;1.8 million. She attributed the fact that it was not worth so much to breach of trust on the part of the bank trustee in both misinterpreting the trust investment clause and investing badly.
Held: Hoffmann J said: ‘There was a claim by Miss Nestle for income accounts for the funds since their inception. For the period during which any income might have accrued to capital, namely until John Nestle turned 25 in 1938, those accounts were delivered a long time ago. In respect of the period since that date she has as a capital beneficiary no interest in the disposal of the income and is not in my judgment entitled to accounts.’

Judges:

Hoffmann J

Citations:

[2000] WTLR 795, (1988) 10 Tru LI 112

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 May 2022; Ref: scu.567851

In re Tillott: ChD 1892

The plaintiff was entitled under a will trust to a one twelfth share in the capital of the residue, contingently on the death of his mother, who was a life tenant. The residue included Bank of England Consols. He had already obtained from the court an order that the defendant will trustee write to the Bank of England authorising it to inform the plaintiff of the amount of such Consols and to produce all the documents relating to property in which the plaintiff was interested. He now sought an order that the defendant trustee authorise the Bank to inform him of any incumbrances on that property, such as charging orders or stop notices. The trustee objected, on the grounds that the plaintiff might thereby obtain information as to the dealings of other contingently entitled remaindermen with their own shares.
Held: The plaintiff was entitled to have the further information sought, so that he would know whether the fund in which he was interested was incumbered or not.
Speaking of the trustee’s argument, Chitty J said: ‘this may give the Plaintiff more information than he is entitled to ask, because as there are twelve shares in this fund, it may be that there are several distringases of the fund obtained by persons who have charges on the continent interest of the other persons, and it is clear that the trustee is not bound to give the cestui que trust of one share any information as to the dealings of the other cestui que trust in whose share he has no interest, shewing whether those shares are or are not incumbranced.’

Judges:

Chitty J

Citations:

[1892] 1 Ch 86

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 May 2022; Ref: scu.567852

Brittlebank v Goodwin: 1868

A trustee is bound to inform a beneficiary, who, on attaining majority is entitled to share in a trust fund, of that interest

Citations:

(1868) LR 5 Eq 545

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 18 May 2022; Ref: scu.567856

Re Boyer’s Settled Estates: 1916

A right to reside shared by two persons was recognized as a valid and effective right. Sargant J said: ‘I think that the effect of s58 is, broadly speaking, to give to the large class of persons comprised in the nine headings of subs(1) of s58 the powers of a tenant for life, although they are not strictly tenants for life by reason of their estates not being strictly estates for life. But, apart from that, I think that the persons who are dealt with under s58 are persons who fall within the general defining provisions of s2(5), under which in determining tenancy you have to regard beneficial title to possession’.

Judges:

Sargant J

Citations:

[1916] 2 Ch 404

Statutes:

Settled Land Act 1882 2(5) 58

Cited by:

CitedBinions v Evans CA 27-Jan-1972
The plaintiffs had bought a cottage subjecty to a tenancy to the defendant. They sought possession saying that she held under a tenancy at will. It was a renancy for her life but described as a tenancy at will. The judge had held that the other . .
Lists of cited by and citing cases may be incomplete.

Trusts, Landlord and Tenant

Updated: 18 May 2022; Ref: scu.450173

Whitmarsh v Robertson: 25 Jan 1845

By a marriage settlement certain stock in the funds was settled upon the intended husband and wife for their joint lives and the life of the survivor, and then upon the children of the marriage, with a power to the trustees, with the consent of the wife, to advance part of the fund for the benefit of the children in her lifetime. were four children of the marriage. The husband died. The wife married again. The second husband assigned the wife’s life interest for value. After the assignment the trustees, with the consent of the wife, exercised the power of advancement in favour of the children of the first marriage. Held, that the power was well executed as against the assignee of the second husband.

Citations:

[1845] EngR 416, (1845) 1 Coll 570, (1845) 63 ER 548

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 18 May 2022; Ref: scu.303558

Chamberlain v Hutchinson: 9 Jul 1856

A lady had a general power of appointing a trust fund by deed or will, and in default, half was limited to A. arid the other to B. By her will, she appointed the fund to her executor arid made it chargeable with her debts and some legacies, and she gave half the residue, composed of the appointed fund and her own property, to A. Held, that the moiety of the fund subject to the power thus appointed in favour of A. passed to the appointor’s next of kin, as part of her estate undisposed of, and not to the executors of A. as in default of appointment.

Citations:

[1856] EngR 762, (1856) 22 Beav 444, (1856) 52 ER 1179

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 18 May 2022; Ref: scu.291517

Pryor v Pryor: CA 29 Apr 1864

Parents having a power of appointing an estate to all or any of their children appointed it absolutely to two of their sons, upon the understanding that the appointments should resettle the estate upon certain trusts for the benefit of all the children then living during their respective lives, and subject thereto for the benefit of the children of the sons. This resettlement was made by a contemporaneous deed. Held, that the transaction could not be supported by analogy to the common case of an appointment to a daughter in contemplation of her marriage, accompanied by a contemporaneous settlement of the appointed fund, but that the appointment was void in equity, as made upon a bargain for the benefit of persons not objects of the power,

Judges:

Knight Bruce LJ

Citations:

[1864] EngR 412, (1864) 3 De G J and S 205, (1864) 46 ER 353

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

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

Trusts, Equity

Updated: 18 May 2022; Ref: scu.282126

Mussumat Thukrain Sookraj Koowar v Government, Baboo Ajeet Sing, And Others: PC 3 Jul 1871

In Oude, before its annexation to the British rule, a Rajah was a TaIookdar of a large Talook. A younger branch of his family had a separate Mehal in the possession of A., wholly distinct from and independent of the Talook the Rajah possessed as representing the elder branch of the family. The Oude Government, for fiscal purposes, included A’s Mehal with the Rajah’s Talook so that the Rajah as the elder branch of the family represented A.’s Mehal at the Court at Lucknow, notwithstanding that A. remained in undisturbed possession as absolute Owner, paying through the Rajah for his Mehal a proportion of the jumma fixed on the Talook. This relation between the Rajah and A. subsisted up to the time of the annexation of Oude by the British Government. While the Government was making a settlement with the Landowners, and A. was about to apply for a distinct settlement of his Mehal, he, and after him his Widow was, induced by the Rajah not to do so, the Rajah in Letters fully recognizing As absolute right to the Mehal. After the suppression of the rebellion in Oude, and the Government had recognized the Talookdary tenure with its rights, a provisional settlement of the Talook including A.’s Mehal, was made with the Rajah ; but before a Sunnud was granted to him, Government confiscated half his estate for concealment of Arms. The Rajah suppressed the fact of the trust relation of the Mehal of A., and contrived that it should be included in the half part of the estate the Government had confiscated ; which Mehal the Government as a reward granted to Oude loyalists. A.’s Widow brought a suit against the Government and the Grantees for the restoration of the Mehal and a settlement, The Financial Commissioner held that as the Rajah was the registered Owner of the Mehal of A., included in his Talook, it had been properly forfeited. Such finding reversed on appeal, on the ground that A. was the acknowledged cestui que trust of the Rajah, and that A.’s Widow, as equitable Owner was not affected as between her and the Government by the act of confiscation of half the Rajah’s Talook.

Citations:

[1871] EngR 27, (1871) 14 Moo Ind App 112, (1871) 20 ER 728

Links:

Commonlii

Trusts, Commonwealth

Updated: 18 May 2022; Ref: scu.280208

Rochdale Canal Company v King: 1853

Sir John Romilly MR said: ‘The principle on which the Defendants rely is one often recognised by this Court, namely, that if one man stand by and encourage another, though but passively, to lay out money, under an erroneous opinion of title, or under the obvious expectation that no obstacle will afterwards be interposed in the way of his enjoyment, the Court will not permit any subsequent interference with it, by him who formally promoted and encouraged those acts of which he now either complains or seeks to take advantage. This is the rule laid down in Dann v Spurrier (7 Ves 231), Powell v Thomas (6 Hare 300), and many other cases, to which it is unnecessary to refer, because the principle is clear.’

Judges:

Sir John Romilly MR

Citations:

(1853) 16 Beav 630

Citing:

CitedDann v Spurrier 1802
The tenant had carried out improvements to the property. It was uncertain whether the length of the term (7, 14 or 21 years) was at the option of the lessee alone.
Held: The case was decided on construction of the lease. Lord Eldon made it . .

Cited by:

CitedYeoman’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.

Land, Trusts

Updated: 18 May 2022; Ref: scu.276430

Re Smith: 1880

Once an estate has been administered, the personal representative becomes a trustee; and at that stage the court’s inherent jurisdiction to control trusts arises allowing if necessary an order for his removal.

Citations:

(1880) 42 Ch D 302

Cited by:

CitedThe Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 18 May 2022; Ref: scu.267735

Alsop Wilkinson v Neary and Others: ChD 4 Nov 1994

The second defendant, a solicitor, had fraudulently taken money from trusts, and paid money into trusts for his own family. It was claimed that the payments were intended to defeat the recovery of the funds. The trustees sought protection on costs through a Beddoe application.
Held: Trustees who sought directions from the court on whether to defend an action, should ask that question in separate proceedings begun for that purpose. By applying within the proceedings, they exposed the strengths and weaknesses of the trustees’ case: ‘it would be quite inappropriate for all this to be revealed to the court which has to try the case or the other parties to the litigation.’ Nor did the application bring the necessary parties before the court. A trustee has a duty to remain neutral when the trust faces hostile litigation regarding the validity of trust itself.

Judges:

Lightman J

Citations:

Independent 03-Nov-1994, Times 04-Nov-1994, [1995] 1 All ER 431

Statutes:

Insolvency Act 1986 423

Citing:

CitedFearns v Young 1804
A trustees’ duty may extend to taking or defending proceedings to protect the assets of the trust. . .
CitedIn re Beddoe, Downes v Cottam CA 1893
In case of doubt as to the desirability of the intended proceedings (whether as plaintiff or defendant), trustees may apply to the court for directions. This will protect the trustees from adverse costs orders. If given leave to sue or defend by the . .
CitedJenour v Jenour 1804
A trustee taking legal action properly to defend the assets of the trust can expect to be indemnified from those assets. . .
CitedRe Biddencare Ltd ChD 1994
The court set out the principles applicable on making a Beddoe application. The court should consider the strength of the case, the likely costs order in the eventual proceedings, and the justice of the application itself. . .
DoubtedIdeal Bedding Company Ltd v Holland 1907
The plaintiffs had obtained against the trustees an order that the settlement was void as against the plaintiffs and other creditors. The court considered the trustees’ position on costs.
Held: A trustee has a duty to defend the trust, and . .
CitedMcDonald and Others v Horn and Others CA 8-Aug-1994
A court may make a pre-emptive award of costs to pension fund members who wished to sue the trustees. Hoffmann LJ said: ‘if one looks at the economic relationships involved, there does seem to me to be a compelling analogy between a minority . .
CitedNational Anti-Vivisection Society Ltd v Duddington 23-Nov-1998
The trustee of the Society had actively defended a trust action but failed. He sought an indemnity for his costs.
Held: He was not entitled to an indemnity for costs out of the trust assets. His acts had preferred one group of beneficiaries . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 17 May 2022; Ref: scu.77770

Re Lead Co.’s Workmen’s Fund Society: 1904

Citations:

[1904] 2 Ch 196

Cited by:

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

Trusts

Updated: 17 May 2022; Ref: scu.245261

Re Ball’s Settlement Trusts: ChD 1968

The curt was asked whether a resettlement of part of a trust fund on a new trust could be a variation which the court could approve under the 1958 Act.
Held: A variation under the Act must not be such as to change the fundamentals of the trust.
Megarry J said: ‘If an arrangement changes the whole substratum of the trust, then it may well be that it cannot be regarded merely as varying that trust. But, if an arrangement, while leaving the substratum, effectuates the purpose of the original trusts by other means, it may still be possible to regard that arrangement as merely varying the original trusts, even though the means employed are wholly different and even though the form is completely changed.’

Judges:

Megarry J

Citations:

[1968] 1 WLR 899

Statutes:

ariation of Trusts Act 1958

Jurisdiction:

England and Wales

Cited by:

CitedGoulding 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: 17 May 2022; Ref: scu.241671

Cowcher v Cowcher: 1972

Where property is to be transferred into the names of two or more people, solicitors should take the instructions of transferees as to the beneficial interests in the transferred property.

Judges:

Bagnall J

Citations:

[1972] 1 WLR 425

Jurisdiction:

England and Wales

Cited by:

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

Trusts

Updated: 17 May 2022; Ref: scu.237545

Barclay v Barclay: CA 1970

The question arose prior to sale between the sole trustee and an occupying beneficial tenant in common as to whether the property should be sold.
Held: The trustee of land was entitled to sell the property and divide the proceeds as the prime object of the trust was that the house should be sold, notwithstanding the fact that one of the beneficiaries had subsequently moved into the house.

Citations:

[1970] 2 QB 677

Jurisdiction:

England and Wales

Cited by:

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

Land, Trusts

Updated: 16 May 2022; Ref: scu.207072

In re Locker’s Settlement Meachem v Sachs: 1977

The court considered how the trustees of a pension scheme could appropriate different parts of the funds as between long standing and new classes of members.
Held: Objects (that is, those who had only recently qualified as beneficiaries) could not benefit from what he called stale income (that is, income which ought to have been distributed at an earlier date).

Judges:

Goulding J

Citations:

[1977] 1 WLR 1323

Cited by:

CitedBank of New Zealand v Board of Management of the Bank of New Zealand Officers’ Provident Association PC 14-Jul-2003
PC (New Zealand) The defendant operated a superannuation scheme for and on behalf of the officers of the bank it regulated. The trustees ought to amend the scheme, but it had been set up by statute.
Held: . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 16 May 2022; Ref: scu.195609

Pullen v Palmer: 1696

The essential difference between tenants in common and joint tenants is that while tenants in common may hold their lands either by several titles or by several rights, joint tenants hold them by one title and by one right. There is no difference as to the possession and manner of taking profits.

Citations:

(1696) 3 Salk 207

Jurisdiction:

England and Wales

Land, Trusts

Updated: 16 May 2022; Ref: scu.190119

Campbell v Gillespie: ChD 1900

Certain businesses and property were held on trusts for the benefit of the Claimant’s creditors, with the Defendant the trustee. The estate was re-conveyed to the Plaintiff and the re-conveyance contained a recital that the Plaintiff’s debts had been paid. At that stage a detailed account was not required and not long afterwards the trustee destroyed all the books of account. The Plaintiff then alleged that the trustee had acted fraudulently and brought a claim for fraud and an account on the basis of wilful default. Those elements of the claim were not pursued and the Plaintiff now sought only an order for a common account.
Held: A court had a discretion under Order 55 rule 10, to decline to make an order for an account and although Cozens-Hardy J felt ‘unable to acquit the defendant of some misconduct’ declined to make an order to direct a common account from 1887 – 1896 as to do so ‘ . . would be to enable the plaintiff to blackmail the defendant.’

Judges:

Cozens-Hardy J

Citations:

[1900] 1 Ch 225

Jurisdiction:

England and Wales

Cited by:

CitedHenchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 16 May 2022; Ref: scu.608335

Attorney General v Cocke: ChD 1988

Judges:

Harman J

Citations:

[1988] 1 Ch 414

Statutes:

Limitation Act 1980 21(3)

Jurisdiction:

England and Wales

Cited by:

CitedHenchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .
Lists of cited by and citing cases may be incomplete.

Limitation, Trusts

Updated: 16 May 2022; Ref: scu.608336

Jones v Morgan: 24 Mar 1783

(Lincoln’s Inn Hall) Devise to trustees to pay debts, then to stand seised to the use of A ‘for Life, without impeachment of waste ; after his decease to the use of the heirs male of his body, severally, respectively, and in remainder, is an estate-tail in A. Where tenant for life pays off an incumbrance upon the estate, he shall be considered as a creditor for the money so paid ; but where tenant in tail pays, it is in exoneration of the estate of which he may make himself absolute owner. This is merely a general rule of presumption or primary inference ; and therefore liable to be rebutted by circumstantial evidence to the contrary.

Citations:

[1783] EngR 55, (1778, 1783) 1 Bro CC 206, (1783) 28 ER 1086

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 15 May 2022; Ref: scu.372184

Ann Rycroft, The Wife Of Henry Rycroft, And Pamela Rycroft, An Infant, By Their Next Friend v William M Christy And Henry Rycroft: 15 Jun 1840

A feme covert made a disposition of property, as to which it was doubtful whether it;
was settled to her separate use, The husband disclaimed.
Held: That whether separate property or riot, the husband’s disclaimer gave effect to the disposition of
the wife.

Citations:

[1840] EngR 693, (1840) 3 Beav 238, (1840) 49 ER 93

Links:

Commonlii

Jurisdiction:

England and Wales

Family, Trusts

Updated: 15 May 2022; Ref: scu.310119

Stiffe v Everitt: 23 Jan 1836

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

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 15 May 2022; Ref: scu.314674

Murphy v Murphy: ChD 2 May 1998

Where a plaintiff could show that he might have some potential interest under a discretionary trust, the settlor could be obliged by the court to disclose the names and addresses of the settlement trustees.

Citations:

Times 02-May-1998, [1999] 1 WLR 282

Cited by:

CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 15 May 2022; Ref: scu.84129

In Re Estate of Monica Dale Dec, Proctor v Dale: ChD 11 Feb 1993

The claimant’s parents had made mutual wills dividing their estates equally between the claimant and her brother. After the father’s death the mother chaged her will to give the biggest benefit to the brother.
Held: The mother could change her will, but was under a binding trust to deal with the assets subject to the mutuality trust in accordance with that trust. With the rules on mutual wills, the element of mutuality operates to extend the enforceability to allow others beyond the couple making the wills to enforce the gifts agreed to be made. The aim of the principle was to prevent one party who transferred assets relying upon the mutuality of the wills to protect them, from being defrauded. The doctrine did not depend upon the second testator having received a benefit under the first will. To be enforceable there had to be a legally binding contract to make and not to revoke wills and one testator had had to have died having performed his or her part of that bargain.

Judges:

Morritt J

Citations:

Gazette 07-Apr-1993, Times 16-Feb-1993, Independent 14-Apr-1993, [1993] 4 All ER 129

Citing:

CitedDufour 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 . .
CitedLord 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’. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts

Updated: 15 May 2022; Ref: scu.81867

D’Abo v Paget and Others (No 2): ChD 10 Aug 2000

Where a beneficiary having brought successful action against the trust fund, the rule in In re Buckton should still apply, but where the trustees could have brought the same action themselves, and had been ready and willing to do so, the beneficiary should not be awarded costs out of the trust fund. Under the new procedure, the court should take a more robust attitude to such claims. In effect the sole reason for the claimant’s participation was to make a claim for costs if the trustees failed.

Citations:

Gazette 05-Oct-2000, Times 10-Aug-2000

Trusts, Wills and Probate, Costs

Updated: 15 May 2022; Ref: scu.79774

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

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

Citations:

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

Trusts

Updated: 15 May 2022; Ref: scu.77621

Re Walker: 1901

Citations:

[1901] 1 Ch 897

Jurisdiction:

England and Wales

Cited by:

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

Trusts, Charity

Updated: 14 May 2022; Ref: scu.237755

Jones v Westcomb: 1711

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

Citations:

(1711) Prec Ch 316

Jurisdiction:

England and Wales

Cited by:

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

Trusts

Updated: 12 May 2022; Ref: scu.189911

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

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

Judges:

Lord Justice Dillon

Citations:

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

Jurisdiction:

England and Wales

Cited by:

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

Trusts

Updated: 10 May 2022; Ref: scu.83547

Fuller v Evans and Others: ChD 27 Oct 1999

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

Citations:

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

Jurisdiction:

England and Wales

Trusts

Updated: 10 May 2022; Ref: scu.80705

Re Halstead’s Will Trusts: ChD 1937

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

Judges:

Farwell J

Citations:

[1937] 2 All ER 570

Jurisdiction:

England and Wales

Cited by:

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

Trusts

Updated: 08 May 2022; Ref: scu.441864

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

Whether Trust was void for perpetuity

Judges:

Danckwerts J

Citations:

[1959] 1 Ch 699

Jurisdiction:

England and Wales

Cited by:

At First InstanceIn 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 . .
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 . .
See AlsoIn Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners CA 1961
. .
See Alsoin Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners CA 2-Jan-1961
. .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 07 May 2022; Ref: scu.402928

Wadeson v Duke: 1846

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

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 07 May 2022; Ref: scu.302126

Birley v Birley: CA 12 Mar 1858

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

Judges:

Sir John Romilly MR

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

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

Trusts, Equity

Updated: 07 May 2022; Ref: scu.288912

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

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

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

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

Trusts

Updated: 07 May 2022; Ref: scu.287036

Robinson v Robinson: CA 1851

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

Judges:

Cranworth LJ

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

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

Trusts

Updated: 07 May 2022; Ref: scu.268064

Re Recher’s Will Trusts: ChD 1972

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

Judges:

Brightman J

Citations:

[1972] Ch 529

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Trusts, Wills and Probate

Updated: 07 May 2022; Ref: scu.245266

Passee v Passee: 1988

Citations:

[1988] 1 FLR 263

Jurisdiction:

England and Wales

Cited by:

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

Trusts, Family

Updated: 07 May 2022; Ref: scu.230912

In re W (EEM): 1971

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

Judges:

Mr Justice Ungoed-Thomas

Citations:

[1971] Ch 123

Jurisdiction:

England and Wales

Cited by:

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

Health, Trusts

Updated: 06 May 2022; Ref: scu.223513

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:

CitedDubai 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

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

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:

CitedArmstrong 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

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:

CitedButtle 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 . .
CitedIn 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.’ . .
CitedBalls 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;…’ . .
CitedDuke 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 . .
CitedIn 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 . .
CitedHarrison-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 . .
CitedEvans 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:

CitedNestle 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 . .
CitedLehtimaki 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 . .
CitedButler-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

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

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

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

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

Re Freiburg Trust: 2004

(Jersey)

Citations:

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

Jurisdiction:

England and Wales

Cited by:

CitedGomez 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

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:

CitedBerezovsky 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

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:

CitedGoulding 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

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:

CitedGoulding 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

Train v Buchanan’s Trustee (Clapperton): HL 25 May 1908

A testator directed his trustees to hold a certain sum and to pay to a beneficiary during his lifetime ‘either the whole or only a portion of the annual revenue thereof, and that subject to such conditions and restrictions, all as my trustees in their sole and absolute discretion think fit’; and on the beneficiary’s death to pay to his children the sum ‘with any revenue accrued thereon that has not been paid’ to the beneficiary; failing such children the sum ‘and accumulations of revenue, if any,’ fell into residue. The trustees from time to time paid the beneficiary some very small sums. The beneficiary having assigned his interest in the trust, the assignee brought an action to obtain the unpaid balance of revenue on the ground that the trustees had never exercised the discretion given them to restrict the amount to be paid, and consequently that the whole annual revenue had become the property of the beneficiary.
Held, in the circumstances of the case, that the trustees had exercised the discretion conferred upon them.

Judges:

Lord Chancellor (Loreburn), Earl of Halsbury, Lord Ashbourne, Lord Robertson, and Lord Collins

Citations:

[1908] UKHL 682, 45 SLR 682, 46 SLR 682

Links:

Bailii

Jurisdiction:

Scotland

Trusts, Wills and Probate

Updated: 26 April 2022; Ref: scu.621512

Johnstone v Mackenzie’s Trustees: HL 26 Jul 1912

A testator conveyed his whole estate to trustees for the following purposes-( a) payment of debts and ‘the expenses of executing this trust’ ( b) giving the widow ‘the liferent use and enjoyment of my dwelling-house . . together with the whole household furniture and plenishing therein at the time of my death . . without, however, any obligation upon her to replace articles broken or perishing with the using . . and in the event of the said dwelling-house . . being sold by my trustees, as they are hereby with the consent of my said wife empowered to do, they shall pay to her the annual income of the price . . obtained therefor during all the days of her life, declaring that the said liferent provisions shall be for the alimentary use of my said wife, and shall not be assignable by her or affectable by the diligence of her creditors’ ( c) payment to the widow, in name of aliment allenarly, of an annuity at the rate of pounds 500 per annum; ( d) payment of two legacies to two brothers; ( e) payment, after setting aside the sum of pounds 20,000 to provide for the foresaid annuity, of one-half of the residue to the widow, and the other half in certain proportions to the two brothers, and, on the death of the widow, of the dwelling-house and the sum set aside to provide the annuity and ‘any surplus revenue accrued thereon’ in the same proportions to the two brothers.
Held ( rev. decision of the Second Division) that the widow’s interest in the house was a liferent, not a right of occupancy, and consequently that she was liable for feuduty, proprietor’s taxes, and landlord’s repairs.

Judges:

Lord Macnaghten, Lord Atkinson, and Lord Shaw

Citations:

[1912] UKHL 986, 49 SLR 986

Links:

Bailii

Jurisdiction:

Scotland

Trusts

Updated: 25 April 2022; Ref: scu.619248

Free Church of Scotland and Others v Macknight’s Trustees: SCS 14 Jan 1916

In an action of count, reckoning, and payment by the beneficiaries under a trust for religious purposes, they averred that certain payments of income tax had not been recovered owing to the negligence of the trustees and their law agents. The tax had been paid on demand for a number of years, when it was brought to the knowledge of the trustees and their law agents that as a result of a decision of the House of Lords in an English case they had all along been entitled to recover it. The trustees thereupon recovered the tax for the previous three years, the limit of recourse allowed by the Income Tax Acts. The beneficiaries sued for the amount of the income tax for the years preceding these three.
Held in the circumstances that neither the trustees nor their law agents were personally liable for failure to recover the income tax.

Citations:

[1916] SLR 260

Links:

Bailii

Jurisdiction:

Scotland

Trusts, Negligence

Updated: 23 April 2022; Ref: scu.618260

Wilson v Law Debenture Trust Corporation plc: ChD 1995

Rattee J upheld the trustees’ refusal to give reasons for a discretionary decision, on what he described as well established principles of trust law. He added: ‘Moreover, there is in my judgment sound reason for the parties to the trust instrument in the present case having conferred such a discretion on the trustee in the hope of minimising the potential for dispute and possibly litigation by various groups of employees and ex-employees, dissatisfied by an exercise of the trustee’s quantification of the amount to be transferred in a situation such as the present.’

Citations:

[1995] 2 All ER 337

Jurisdiction:

England and Wales

Trusts

Updated: 12 April 2022; Ref: scu.570866

Heugh v Scard: CA 1875

Sir George Jessel MR said: ‘In certain cases of mere neglect or refusal to furnish accounts, when the neglect is very gross or the refusal wholly indefensible, I reserve to myself the right of making the executor or trustee pay the costs of litigation caused by his neglect or refusal. But I expressly guard myself against saying that in every case of mere neglect, or even in every case of mere neglect, or even in every case of mere refusal, an honest executor or trustee who has fairly discharged his duty – an onerous and thankless one – is to pay costs . . In this case I find inexcusable delay, inexcusable refusal to furnish accounts, and misconduct in dealing with the trust fund . . I think he [the executor] must pay the costs of the suit, except the cost of vouching the accounts.’

Judges:

Sir George Jessel MR

Citations:

(1875) 33 LT 659

Cited by:

AppliedIn Re Skinner ChD 1904
A beneficiary of a will trust brought an action for an account, having had little or no accounting from the executors and trustees (one a professional solicitor, entitled to charge) since the testator died more than two years before the action was . .
CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
CitedBlades v Isaac and Another ChD 21-Mar-2016
Claim by beneficiary under discretionary trust.
Held: A trustee’s wrongful failure to provide information does not necessarily justify an adverse costs order. . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 12 April 2022; Ref: scu.567858

The Law Debenture Trust Corporation v Ural Caspian Oil Corp Ltd: ChD 9 Sep 1992

The burden of agreements binding on shares which had been assigned did not pass simpliciter with the shares.

Citations:

Gazette 09-Sep-1992

Jurisdiction:

England and Wales

Citing:

Appealed toLaw Debenture Trust Corporation Plc v Ural Caspian Oil Corp Ltd CA 10-Mar-1994
An assignment which was made intending to defeat a third party’s rights is not itself a cause of action. . .

Cited by:

Appeal fromLaw Debenture Trust Corporation Plc v Ural Caspian Oil Corp Ltd CA 10-Mar-1994
An assignment which was made intending to defeat a third party’s rights is not itself a cause of action. . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 10 April 2022; Ref: scu.89823

Lohia and Another v Lohia: ChD 7 Sep 2000

Land was transferred from son to his father with no consideration expressed. The father died and the son claimed that the absence of consideration meant that the house was to be held upon trust for the donor and donee as beneficial joint tenants in equal shares, and that accordingly upon the death of the father he was entitled to his share.
Held: The section was clear and that a conveyance for nil value meant what it said. A person seeking to establish a resulting trust had to prove it. The voluntary conveyance was effective in the terms in which it was expressed.

Citations:

Gazette 07-Sep-2000

Statutes:

Law of Property Act 1925 60 (3)

Land, Trusts

Updated: 09 April 2022; Ref: scu.83151

Gold and Another v Hill; Hill v Fold and Others: ChD 24 Aug 1998

A nomination of a beneficiary to take proceeds of a life policy, where that beneficiary was in turn to pay it on to somebody else, was akin to a secret trust, but nominations are not subject to Law of Property Act 1925 s 53 since a nomination is not a disposition.

Citations:

Times 24-Aug-1998, Gazette 16-Sep-1998

Statutes:

Law of Property Act 1925 53(1)( c)

Trusts

Updated: 08 April 2022; Ref: scu.80892