Trusts - 1960- 1969

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This page lists 45 cases, and was prepared on 28 October 2012.

Compton -v- Compton [1960] P 201
1960 FD Marshall J	Trusts, Family	Casemap
	The court considered whether trusts were to be deemed to be post nuptial settlements: "The first point taken by Mr. Beyfus on the wife's behalf is fundamental. He has submitted that the four settlements in question are not "post-nuptial settlements made on the parties "whose marriage is the subject of the decree." This submission was made before the registrar, but later abandoned before the hearing was concluded. It has, however, been revived before me and I must deal with it. If he were right in that submission this court would have no jurisdiction to make any order upon this application. I do not entertain any doubt that this submission is wrong. These settlements are settlements of property made in the course of marriage, and they deal with the interests of the children of the marriage. In the disposal of the property for the benefit of each child the respondent wife has been given a voice both as trustee and under the power of appointment even though it is the husband who provides all the money. Under the settlements on the two daughters she also has a beneficial interest in reversion. A settlement can settle on parties to a marriage power over the disposal as well as over the property itself."

In re Moritz [1960] Ch 251
1960 CA Wynn-Parry LJ	Trusts, Costs, Litigation Practice	Casemap 1 Cites 1 Citers
	Trustees had denied the defendants a sight of the exhibits to affidavits. Their' counsel argued for a settled practice that where an application is made by trustees for directions of the Beddoe kind, then the proposed defendant beneficiaries should not necessarily see all the evidence relating to the dispute. Counsel for the proposed beneficiary defendants, argued that he should be entitled to attend argue for his clients, on all matters including ones based on the so-far denied exhibits, and that it was for the Judge to say if those arguments were heard in the presence of parties other than the trustees who sought the directions of the court, though where one was considering beneficiaries and where their trust estate might bear the expense of the proposed litigation, it was beneficiaries' money that was being spent or being proposed to be spent. Held: Wynn-Parry J said: "Speaking for myself, so far as I know, it has been the practice of this court, without exception, over a great many years, that where, in such a case as this, application is made by a trustee ex necessis where there are disputes, for directions from the court as to whether or not proceedings should be brought against the defendants, those defendants are not entitled to be heard upon that application. The court acts upon such evidence as is placed before it and it expresses itself one way or the other." and "As I understand it, the practice in this Division is that where a trustee finds it is compelled to ask for the directions of the court as to whether or not certain proceedings should be taken, while it is proper and indeed necessary to join the parties against whom the proposed relief is sought, those parties should not be present in Chambers when the matter is debated; and they should not be furnished with the evidence upon which the court is asked to act… Very frequently, the leave to proceed is limited, for instance, up to discovery, but it would seem to me to be a quite unjustified inroad upon what I conceive to be a very useful practice if I were to allow this application and to allow the two defendants not merely to be present at the beginning of the proceedings when the originating summons is heard, but to remain there throughout those proceedings and to have all the evidence on which the trustees are asking the court for its directions. I know of no precedent for it, and, in my view, it is completely against the established practice."

Jones -v- Challenger [1960] 1 All ER 785; [1961] 1 QB 176
1960 CA Devlin LJ	Land, Trusts	Casemap 1 Citers
	The test under the section was whether it was inequitable to make the order for sale where one of the joint beneficiaries, who in that case were ex-husband and wife, wished to realise their investment in the property. Held: Referring to the statement of principle in in re Mayo, described as 'a simple uncomplicated case of a trust for sale of freehold property, where the beneficiaries were brother and sister, and where there was no suggestion that either of them were intended or even wished to occupy the property"' "But this simple principle cannot prevail where the trust itself in the circumstances in which it was made show that there was a secondary or collateral object besides that of sale ... it is at any rate wrong and inequitable for one of the parties to the trust to invoke the letter of the trust in order to defeat one of its purposes, whether that purpose be written or unwritten, and the court will not permit it."
	Law of Property Act 1925 30

Re Endacott [1960] Ch 232
1960	Charity, Trusts	Casemap 1 Citers
	Non-charitable purpose trusts are anomalous.

Re Steed's Will Trusts [1960] Ch 407; [1960 1 All ER 487
1960 CA Lord Evershed MR	Trusts	Casemap 1 Citers
	The court considered an application under the 1968 Act to vary a trust. The testator had shown in the terms of his will a particular purpose in creating a protective trust; that was to protect the life tenant from improvident dealings with property in favour of certain members of her family. Held: The court was satisfied that the testator's purpose, evidenced in the will, was still justified at the time of the application to vary. That was a view also shared by the trustees, who opposed the application by the protected life tenant. In those circumstances there was an overwhelming reason for the continuation of the protective trusts and in the continuance of the interest of the paragraph (d) class of person. The court said that the 1958 Act conferred 'a revolutionary discretion.' The intentions, wishes and motives of the settlor or testator may be relevant and weighty in desiding whether to accept a proposed variation. The court upheld a refusal to approve a variation on the basis that the proposed variation was contrary to the testator's clear intentions. The court had an unfettered discretion which it could refuse to exercise if the arrangement was contrary to the testator's wishes. Lord Evershed MR: "After all, if the court is asked to approve this proposal on behalf of a spectral spouse (if I may revert to that phrase) it must ask, I take it, why is the spectral spouse there at all under the trust? If one asks that question, nearly everything else, as it seems to me, follows. There is no doubt why the spectral spouse is there. It was part of the testator's scheme, made as I think manifest by the language which I have read from the clauses in the will, that it was the intention and the desire of the testator that this trust should be available for the plaintiff so that she would have proper provision made for her throughout her life, and would not be exposed to the risk that she might, if she had been handed the money, part with it in favour of another individual about whom the testator felt apprehension, which apprehension is plainly shared by the trustees."
	Variation of Trusts Act 1958 1

In Re Pilkington's Will Trusts; Pilkington -v- Inland Revenue Commissioners [1961] 1 Ch 466
1961	Trusts	Casemap 1 Cites 1 Citers

Wissenbruch -v- Wissenbruch 1961 SC 340
1961	Scotland, Trusts	Casemap 1 Citers

Re Burney's Settlement Trusts [1961] 1 WLR 545
1961 ChD Wilberforce J	Trusts	Casemap 1 Citers
	The court approved a proposed variation of a trust.

in Re Pilkington's Will Trusts; Pilkington -v- Inland Revenue Commissioners [1961] Ch 488
2 Jan 1961 CA Upjohn LJ	Trusts, Equity	Casemap 1 Cites

Neville Estates Ltd -v- Madden [1962] Ch 832
1962 ChD Cross J	Trusts	Casemap 1 Citers
	A charitable trust was created for the benefit of the members of Catford Synagogue. Held: The court considered two categories of valid non-charitable purpose gifts: (1) an absolute gift to members of an association at the date of the gift, under which the members take as joint tenants, and any member can sever his share; or (2) a trust for the members at the date of the gift, subject to their contractual rights and liabilities towards one another as members of the association.

Hine -v- Hine [1962] 1 WLR 1124
1962 CA Lord Denning MR	Trusts	Casemap 1 Citers
	Lord Denning MR: "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."
	Married Women's Property Act 1882 17

Chettiar -v- Chettiar [1962] AC 294
1962 PC Lord Denning, Viscount Simonds	Trusts	Casemap 1 Citers
	A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact displaced the presumption of advancement. Held: The presumption of advancement in a gift between father and son is not lightly to be displaced by evidence: “…. in the present case the plaintiff had of necessity to disclose his own illegality to the court and for this reason: He had not only to get over the fact that the transfer stated that the son paid $7000 for the land. He had also to get over the presumption of advancement, for whenever a father transfers property to his son, there is a presumption that he intended it as a gift to his son; and if he wishes to rebut that presumption and to say that he took as trustee for him, he must prove the trust clearly and distinctly, by evidence properly admissible for the purpose, and not leave it to be inferred from slight circumstances. see Shepherd v. Cartwright [1955] AC 431. The fact that the father received the income does not suffice ….. The father had also to get over this pertinent question: If he intended the son to take as a trustee, why did he not insert on the memorandum of transfer the words “as trustee” and register the trust as he could have done under section 160 of the Land Code? "In these circumstances it was essential for the father to put forward a convincing explanation why the transfer took the form it did, and the explanation he gave disclosed that he made the transfer for a fraudulent purpose, namely, to deceive the public administration ….. Once this disclosure was made by the father, the courts were bound to take notice of it, even though the son had not pleaded it …. in the present case the father has of necessity to put forward,, and indeed, assert, his own fraudulent purpose, which he has fully achieved. He is met therefore by the principle stated long ago by Lord Mansfield “No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act,” see Holman v. Johnson (1775) 1 Cowp. 341, 343).” ...."

In Re Druce's Settlement Trusts [1962] 1 WLR 363
1962 ChD Russell J	Litigation Practice, Trusts	Casemap 1 Citers
	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."

In Re Pilkington's Will Trusts; Pilkington -v- Inland Revenue Commissioners [1964] AC 612; [1962] 3 All ER 622; [1962] 3 WLR 1051; 106 Sol Jo 834; 40 Tax Cas 433
1962 HL Viscount Radcliffe	Equity, Trusts	Casemap 1 Cites 1 Citers
	In the context of a power of advancement, it is no bar to an exercise of the power that the primary object neither requested nor consented to it, and the power was not limited to the conferring of benefit "personal to the person concerned in the sense of being related to his or her own real or personal needs". Nevertheless, trusts created in remainder after the life interest of the settlor's son were void for perpetuity. The phrase "advancement or benefit" in s.32 of the 1925 Act covered: "any use of the money which will improve the material situation of the beneficiary." A power of advancement was a special power and accordingly trusts called into existence by its exercise must be written into the instrument creating the power far the purposes of applying the perpetuity rule.
	Trustee Act 1925 32

Wilson -v- Wilson [1963] 1 WLR 1470
1963 CA	Trusts	1 Citers

New Zealand Netherlands Society "Oranje" Inc -v- Laurentuis Cornelis Kuys [1973] 1 WLR 1126
1963 PC Lord Wilberforce	Trusts, Commonwealth	Casemap 1 Cites 1 Citers
	(New Zealand) The scope of a fiduciary duty may be modified by a course of dealing by the person to whom the duty is owed. "The obligation not to profit from a position of trust, or, as it sometimes relevant to put it, not to allow a conflict to arise between interest and duty, is one of strictness. The strength, and indeed the severity, of the rule has recently been emphasised by the House of Lords in Phipps v. Boardman …. It retains its vigour in all jurisdictions where the principles of equity are applied. Naturally it has different applications in different contexts. It applies, in principle, whether the case is one of a trust, express or implied, of partnership, of directorship of a limited company, of principal and agent, or master and servant, but the precise scope of it must be moulded according to the nature of the relationship." A trustee seeking to to obtain a benefit or incur or enter into any transaction which is a prima facie breach of his fiduciary duties, must make full and frank advance disclosure.

Re Pauling's Settlement Trusts (No.1) [1963] EWCA Civ 5; [1964] Ch 303; [1963] 3 All ER 1; [1963] 3 WLR 742
29 May 1963 CA	Equity, Limitation, Trusts	Casemap 1 Citers
	The doctrine of laches has no application to cases to which the Statutes of Limitation apply either expressly or by analogy. The court considered the exercise of a power by the trustees: "Being a fiduciary power, it seems to us quite clear that the power can be exercised only if it is for the benefit of the child or remoter issue to be advanced or, as was said during argument, it is thought to be 'a good thing' for the advanced person to have a share of capital before his or her due time. That this must be so, we think, follows from a consideration of the fact that the parties to a settlement intend the normal trusts to take effect, and that a power of advancement be exercised only if there is some good reason for it. That good reason must be beneficial to the person to be advanced; it cannot be exercised capriciously or with some other benefit in view. The trustees, before exercising the power, have to weigh on the one side the benefit to the proposed advancee, and on the other hand the rights of those who are or may hereafter become interested under the trusts of the settlement."
	Link[s] omitted

Re Pauling's Settlement Trusts (No 2) [1963] 1 All ER 857; [1963] 3 WLR 742; [1963] Ch 576
1 Jun 1963 Wilberforce J	Trusts	Casemap 1 Cites 1 Citers
	An application was made for the trustee to be replaced. The trustee complained that he would remain liable in certain events, and sought an indemnity from any new trustee out of the trust fund. Held: A new trustees would be under "the normal duty of preserving an equitable balance, and if at any time it was shown they were inclining one way or the other, it would not be a difficult matter to bring them to account." The court asked to what extent a trustee may have a lien over the trust fund for the liabilities to which that trustee may be subject.

In re Eaton [1964] 1 WLR 1269
1964	Trusts	Casemap 1 Citers

In re T's Settlement Trusts [1964] Ch 158
1964 ChD Wilberforce J	Trusts	Casemap 1 Citers
	Wilberforce J was asked to approve a variation of a trust in favour of a child under the 1958 Act, to restrict her from getting her full entitlement on her attaining the age of 21 because she was said to be "alarmingly immature and irresponsible as regards money." She was within 18 days of attaining majority. Held: The court deferred the vesting and imposed protective trusts in the interim. Wilberforce J said this of the word "benefit": "'benefit' is a word of wide meaning: it is not restricted to material benefit. On this basis I was urged to approve the arrangement. This argument, based on the language of the Act, has much force . . There are obvious difficulties in attributing so wide a meaning to the Act of 1958. For example, is the court to consult the wished of the infant? That is, as has been found here, a matter of considerable difficulty, and where, as here, the infant is nearly 21, it would seem preferable, if her wishes can be taken into account, to leave the matter over until she can decide for herself. Or can the court impose a settlement against the infant's wishes? To so this would involve going much further than the court goes under the Act of 1855, and places upon the court a heavy responsibility (which it does not have generally in variation of trusts applications) of considering and estimating the views of other persons (often including parents and medical and psychological experts) as to what is for the infant's benefit."
	Variation of Trusts Act 1958 1

Re Van Gruisen's Will Trusts [1964] 1 WLR 449
1964 ChD Ungoed-Thomas J	Trusts	Casemap
	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."

Londonderry, Re; Henry Peat -v- Lady Helen Maglona Walsh [1964] EWCA Civ 6; [1964] 3 All ER 855; [1965] Ch 918; [1965] 2 WLR 229
3 Nov 1964 CA Harman LJ, Danckwerts LJ, Salmon LJ	Trusts	Casemap 1 Citers
	Trustees exercising a discretionary power are not bound to disclose to their beneficiaries the reasons actuating them in coming to a decision.
	Link[s] omitted

In re DML [1965] Ch 1133
1965	Trusts, Health	Casemap 1 Citers

Phipps -v- Boardman [1965] Ch 992
1965 CA Lord Denning MR	Trusts	1 Citers

Bedson -v- Bedson [1965] 2 QB 666
1965 CA Lord Denning MR, Russell LJ	Family, Trusts	Casemap 1 Citers
	Severance of a joint tenancy might not automatically lead to a tenancy in common in equal shares (Lord Denning)
	Married Women's Property Act 1882 17

In Re Jones Will Trusts [1965] 1 Ch 1124
11 Jan 1965 ChD Buckley J	Contract, Trusts	Casemap 1 Citers
	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".

Re Clore's Settlement Trusts [1966] 1 WLR 955
1966 ChD Pennycuick J	Trusts, Charity	Casemap 1 Citers
	A 21 year old beneficiary of a substantial trust fund requested the trustees to apply for his benefit a sum (equal to about one-seventh of the fund) to a family charitable foundation. He would be entitled to the capital of the fund on attaining 30, in default of which the capital went to his issue if any and subject thereto to his sister and her family in trust. Held: It was open to the trustees to make the advance: i) the improvement of the material situation of the beneficiary is not confined to his direct financial situation but could include the discharge of certain moral or social obligations particularly in relation to provision for family and dependants. And ii) the court has always recognized that a wealthy person has a moral obligation to make appropriate charitable donations and that: "a beneficiary under a settlement may indeed in many cases be reasonably entitled to regard himself as under a moral obligation to make donations towards charity. The nature and amount of those donations must depend upon all the circumstances, including the position in life of the beneficiary, the amount of the fund and the amount of his other resources. Once that proposition is accepted, it seems to me that it must lie within the scope of a power such as that contained in clause 8 of this settlement for the trustees to raise capital for the purpose of relieving the beneficiary of his moral obligation towards whatever charity he may have in mind. If the obligation is not to be met out of the capital of the trust fund, he would have to meet it out of his own pocket, if at all. Accordingly, the discharge of the obligation out of the capital of the trust fund does improve his material situation. The precise amount which the trustees can in any given case apply for this purpose must depend, I think, on the particular circumstances, and in this respect quantum is a necessary ingredient in the proper exercise of the power. It is difficult, for example, to see how the trustees under a power such as that in clause 8 could validly pay over the whole authorized two-thirds to charitable purposes. On the other hand, it is certainly not for the court to say precisely where the line is to be drawn." iii) rejecting the argument that direct material advantage could only be shown if, for example, the beneficiary was under such pressure, public or otherwise, that it would be detrimental to his material position if the donation were not made, that that was: "too narrow a view of what represents a benefit in a material sense to the beneficiary. Once the beneficiary regards the payment as a moral obligation, then it may be for his benefit to be relieved of it." Earlier he said: "Once he recognises this obligation the trustees may properly regard it as improving his material situation to discharge the obligation out of the trust fund, and as I have said, the proportion they propose to apply for this purpose is not excessive."

In re Lysaght (deceased) [1966] Ch 191
1966 Buckley J	Trusts, Charity	Casemap 1 Citers
	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.

Phipps -v- Boardman [1966] 3 All ER 721; [1967] 2 AC 46; [1966] UKHL 2
1966 HL Lord Upjohn, Lord Hodson	Equity, Trusts	Casemap 1 Cites
	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 the exact circumstances of each case. The relevant rule for the decision of this case is the fundamental rule of equity that a person in a fiduciary capacity must not make a profit out of his trust, which is part of the wider rule that a trustee must not place himself in a position where his duty and his interest may conflict." "The whole of the law is laid down in the fundamental principle exemplified in Lord Cranworth’s statement [in Aberdeen Railway Co v. Blaikie]. But it is applicable, like so many equitable principles which may affect a conscience, however innocent, to such a diversity of different cases that the observations of judges and even in your Lordships’ House in cases where this great principle is being applied must be regarded as applicable only to the particular facts of the particular case in question and not regarded as a new and slightly different formulation of the legal principle so well settled." and "The phrase ‘possibly may conflict’ requires consideration. In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in conflict." The court considered the circumstances under which information has been acquired so as to impose a duty of confidence: "The true test is to determine in what circumstances the information has been acquired. If it has been acquired in such circumstances that it would be a breach of confidence to disclose it to another then courts of equity will restrain the recipient from communicating it to another. In such cases such confidential information is often and for many years has been described as the property of the donor, the books of authority are full of such references: knowledge of secret processes, "know-how", confidential information as to the prospects of a company or of someone's intention or the expected results of some horse race based on stable or other confidential information. But in the end the real truth is that it is not property in any normal sense but equity will restrain its transmission to another if in breach of some confidential relationship." Lord Upjohn said: "In general, information is not property at all. It is normally open to all who have eyes to read and ears to hear. The true test is to determine in what circumstances the information has been acquired. If it has been acquired in such circumstances that it would be a breach of confidence to disclose it to another, then courts of equity will restrain the recipient from communicating it to another. In such cases such confidential information is often and for many years has been described as the property of the donor, the books of authority are full of such references; knowledge of secret processes, "know-how", confidential information as to the prospects of a company or of someone's intention or the expected results of some horse race based on stable or other confidential information. But in the end the real truth is that it is not property in any normal sense, but equity will restrain its transmission to another if in breach of some confidential relationship".
	Link[s] omitted

re Tilley’s Will Trusts [1967] Ch 1179
1967 ChD Ungoed-Thomas J	Trusts	Casemap 1 Cites 1 Citers
	The court considered the rights of a beneficiary to participate in any profit which resulted where a trustee mixed trust money with his own money and then used it to purchase other property.

Holder -v- Holder; In re Frank Holder dec [1967] EWCA Civ 2; [1968] Ch 353; [1968] 1 All ER 665; [1968] 2 WLR 237
8 Dec 1967 CA Harman LJ, Danckwerts LJ, Sachs LJ	Wills and Probate, Trusts	Casemap 1 Citers
	Link[s] omitted

Holmden's Settlement Trusts, Re Holmden's Settlement, Re [1968] AC 685; [1967] UKHL 7
13 Dec 1967 HL Lord Reid, Lord Guest, Lord Wilberforce	Trusts, Torts - Other	Casemap 1 Cites 1 Citers
	Under the 1968 Act, the court is not in the position of a statutory settlor. Lord Reid described the provisions of the 1958 Act: "Under the Variation of Trusts Act the court does not itself amend or vary the trusts of the original settlement. The beneficiaries are not bound by variations because the court has made the variation. Each beneficiary is bound because he has consented to the variation. If he was not of full age when the arrangement was made he is bound because the court was authorised by the Act to approve of it on his behalf and did so by making an order. If he was of full age and did not in fact consent he is not affected by the order of the court and he is not bound. So the arrangement must be regarded as an arrangement made by the beneficiaries themselves. The court merely acted on behalf of or as representing those beneficiaries who were not in a position to give their own consent and approval. So we have an alteration of the settlement which was not made by the settlor or by the court as being empowered to make it, but which was made by the beneficiaries quite independently of the settlor or of any power, express or implied given or deemed to have been given by him." Lord Guest: "Section 1 of the Act enabled the court to give approval to an arrangement on behalf of such persons as were unable by incapacity or otherwise to give their approval. The court thus supplied the capacity which the incapax lacked." Lord Wilberforce: "If all the beneficiaries under the settlement had been sui juris, they could, in my opinion, have joined together with the trustees and declared different trusts which would supersede those originally contained in the settlement. Those new trusts would operate proprio vigore, by virtue of a self-contained instrument - namely, the deed of arrangement or variation. The original settlement would have lost any force or relevance. The effect of an order made under the Variation of Trusts Act, 1958, is to make good by act of the court any want of capacity to enter into a binding arrangement of any beneficiary not capable of binding himself and of any beneficiary unborn: the nature and effect of any arrangement so sanctioned is the same as that I have described."
	Variation of Trusts Act 1958 1
	Link[s] omitted

Gartside -v- Inland Revenue Commissioners [1968] AC 553
1968 HL Lord Reid, Lord Wilberforce, Viscount Dilhorne	Trusts	Casemap 1 Citers
	Lord Reid: "no object of a discretionary trust has, as such, any legal right to or in the capital" and ""In possession" must mean that the interest enables you to claim now whatever may be the subject of the interest. For instance, if it is the current income from a certain fund your claim may yield nothing if there is no income, but your claim is a valid claim, and if there is any income you are entitled to get it. But a right to require trustees to consider whether they will pay you something does not enable you to claim anything. If the trustees do decide to pay you something, you do not get it by reason of having the right to have your case considered: you get it only because the trustees have decided to give it to you." Lord Wilberforce said that the circumstances in which a beneficiary under a discretionary trust may seek protection, and the nature of the protection he may expect to obtain, will depend on the court's discretion.

Re Weston's Settlement Trusts [1969] 1 Ch 223; [1968] 3 All ER 338
1968 CA Lord Denning MR	Trusts	Casemap
	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.
	Variation of Trusts Act 1958 1

Re Ball's Settlement Trusts [1968] 1 WLR 899; [1968]
1968 Megarry J	Trusts	Casemap 1 Citers

Selangor United Rubber Estates Ltd -v- Cradock (No 3) [1968] 1 WLR 1555; [1968] 2 All ER 1073
1968 ChD Ungoed-Thomas J	Trusts, Company	Casemap 1 Citers
	The expressions "constructive trust" and "constructive trustee" are "nothing more than a formula for equitable relief. It is the actual control of assets belonging beneficially to a company which causes the law to treat directors as analogous to trustees of those assets."

in Re Wallace's Settlements [1968] 1 WLR 71
1968 ChD Megarry J	Trusts	Casemap 1 Citers
	A judge considering an application to vary trusts should approach it with "a fair cautious and enquiring mind".

Ulrich -v- Ulrich and Felton [1968] 1 WLR 180
1968 CA Lord Denning MR and Diplock LJ	Trusts	Casemap 1 Citers
	The parties had married, but bought a house when engaged. She had paid one-sixth of the acquisition cost in cash, and he raised the balance by a mortgage in his name. Held: It was wrong to treat a mortgage contribution as equivalent to a cash contribution.

Barclays Bank Ltd -v- Quistclose Investments Ltd; etc [1970] AC 567; [1968] UKHL 4
31 Oct 1968 HL Lord Wilberforce, Reid, Morris, Guest, Pearce LL	Company, Trusts	Casemap 1 Citers
	R Ltd were in serious financial difficulties. The company's overdraft with the appellant bank was almost twice its permitted limit. The company sought a loan of £1 million from a financier, who was willing to lend the company that sum provided the company found the money necessary to pay the ordinary share dividend, a sum of £209,719-8s-6d. The company succeeded in obtaining a loan in that sum and for that purpose from the respondents. The respondents cheque was paid into a special account opened by the company with the appellants which was to be used only for the purpose of paying the dividend. The company went into voluntary liquidation, before the dividend was paid. The respondents brought an action against the company and the appellants claiming the money in the special account. Held: This gave rise to a trust in favour of the creditors and if the trust failed, in favour of the third person. When the money was advanced, the lender acquired a right, enforceable in equity, to prevent its application for any other purpose. This prevents the borrower from obtaining any beneficial interest in the money while the designated purpose is still capable of being carried out. Once the purpose has been carried out, the lender has his normal remedy in debt. If the purpose cannot be carried out, the question arises whether the money falls within the general fund of the borrower's assets, in which case it passes to his trustee-in-bankruptcy in the event of his insolvency and the lender is merely a loan creditor; or whether it is held on a resulting trust for the lender. This is determined by the particular facts. Lord Wilberforce observed: "The mutual intention of the respondents and of Rolls Razor Ltd, and the essence of the bargain, was that the sum advanced should not become part of the assets of Rolls Razor Ltd, but should be used exclusively for payment of a particular class of its creditors, namely those entitled to the dividend. A necessary consequence from this, by process simply of interpretation, must be that if, for any reason, the dividend could not be paid, the money was to be returned to the respondent: the word "only" or "exclusively" can have no other meaning or effect."
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In re Denley's Trust Deed [1969] 1 Ch 373
1969 Chd Goff J	Trusts	Casemap 1 Citers
	The trustees of land in Gloucestershire were to maintain the land as a sports ground for the benefit of the employees of a company and also for "such other person or persons (if any) as the trustees may allow to use the same . . ." The Deed contained a perpetuity clause providing that if (a) the number of employees subscribing 2d per week each should be less than 75% of the workforce, or (b) if the land was no longer required as a sports ground, or (c) if the company went into liquidation, then the trustees were to convey the land to the General Hospital Cheltenham or as it should direct. The court was asked whether the trust and the gift over were valid. The company argued that the trust was invalid because of the absence of certainty as to beneficiaries, and the fund was therefore held for the company. For the employees it was argued that the trust was valid, but the gift over was invalid. It was held that the trust and the gift over were valid. "Where, then, the trust, although expressed as a purpose, is directly or indirectly for the benefit of an individual or individuals, it seems to me that it is in general outside the mischief of the beneficiary principle. . . The trust in the present case is limited in point of time so as to avoid any infringement of the rule against perpetuities and . . . it does not offend against the beneficiary principle; and unless, therefore, it is void for uncertainty, it is a valid trust. As it is a private trust and not a charitable one, it is clear that, however it be regarded, the individuals for whose benefit it is designed must be ascertained or capable of ascertainment at any given time …"

In Re Holt's Settlement [1969] 1 Ch 100
1969 ChD Megarry J	Trusts, Chaildren	Casemap 1 Citers
	An application was made to vary the terms of 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.

Denvir -v- Denvir 1969 SLT 301
1969	Scotland, Trusts	Casemap 1 Citers

in Re: Abrahams' Will Trust [1969] 1 Ch 463
1969 ChD Cross J	Trusts	Casemap 1 Citers
	The trustees of a 1948 settlement had advanced funds in 1957 by way of a new settlement, the terms of which did not comply with the rule against perpetuities. Not all the terms of the 1957 settlement would infringe the rule against perpetuities, but the effect of the rule was extensive. For example a child had a life interest subject to protective trusts. The effect of the rule was that the life interest was valid but that the discretionary trusts arising on forfeiture would be invalid, so that, upon a forfeiture, the property would be held on the trusts of the original 1948 settlement. The argument in favour of holding the advancement wholly void was advanced by the Inland Revenue. Held. The revenue succeeded. Cross J said: "The power which the trustees purported to exercise by setting up Carole's fund (to take her as an example) and declaring the trusts of it which are contained in the 1957 settlement was a power exercisable for the benefit of Carole, and for nobody else. The various other persons to whom the settlement purported to give benefits were not objects of that power of advancement. The position was that the trustees had a discretion as to the manner in which they would benefit Carole, and they considered that an appropriate way to benefit her would be to create this settlement under which beneficial interests were given to other members of her family besides herself. If one looks at the matter in that way, it seems to me reasonable to hold that the effect of the invalidity of some of the limitations in the settlement by reason of the rule against perpetuities may not be the same as it would have been had the settlement been created by the exercise of a special power of appointment under which all the supposed beneficiaries were objects. It is one thing to say that if a trustee has power to appoint a fund to all or any of a class of objects and he appoints a life interest to one object which is not void for perpetuity and remainders to other objects which are void, then the life interest survives the invalidity of the remainders; but it is another thing to say that if a trustee has power to benefit A. in a number of different ways and he chooses to benefit him by making a settlement on him for life with remainders to his issue, which remainders are void for perpetuity, then A can claim to obtain that part of the benefit intended for him which is represented by the life interest. The interests given to separate objects of an ordinary special power are separate interests, but all the interests created in Carole's fund were intended as part and parcel of a single benefit to her." and "Of course, it may well be that, if the invalidity caused by the operation of the rule against perpetuities is quite small as compared with the parts of the settlement which are unaffected by the rule, the court might be prepared to say that the valid parts of the settlement would survive intact. Thus Lord Evershed MR held in the Vestey case that the exercise of the discretion there could be upheld notwithstanding the fact that the trustees were to some extent under a misapprehension as to what its effect would be. But here there is no doubt that the effect of the operation of the rule is wholly to alter the character of the settlement. In my judgment the result of that must be that there never was a valid exercise by the trustees of the power of advancement."

Re CL [1969] 1 Ch 587
1969	Trusts	Casemap 1 Citers
	Trustees sought the court permission to distribute assets in such a way as to extinguish the beneficiary's interest in favour of her adopted children with a consequent saving of estate duty on her death with no real detriment to the material position of the beneficiary. Held: The word benefit included the proposed arrangement.

Pettitt -v- Pettitt [1969] 2 WLR 966; [1969] 2 All ER 385; [1970] AC 777; [1969] UKHL 5
23 Apr 1969 HL Lord Reid, Lord Hodson, Lord Upjohn	Trusts, Family	Casemap 1 Citers
	A husband and wife disputed ownership of the matrimonial home against the presumption of advancement. Lord Reid said: "These considerations have largely lost their force under present conditions, and, unless the law has lost its flexibility so that the courts can no longer adapt it to changing conditions the strength of the presumption must have been much diminished. I do not think it would be proper to apply it to the circumstances of the present case." Lord Hodson said: "Reference has been made to the 'presumption of advancement' in favour of a wife in receipt of a benefit from her husband. In old days when a wife's right to property was limited, the presumption, no doubt, had great importance and today, when there are no living witnesses to a transaction and inferences have to be drawn, there may be no other guide to a decision as to property rights than by resort to the presumption of advancement. I do not think it would often happen that when evidence had been given, the presumption would today have any decisive effect." Lord Upjohn: "But the document may be silent as to the beneficial title. The property may be conveyed into the name of one or other or into the names of both spouses jointly in which case parol evidence is admissible as to the beneficial ownership that was intended by them at the time of acquisition and if, as very frequently happens as between husband and wife, such evidence is not forthcoming, the court may be able to draw an inference as to their intentions from their conduct. If there is no such available evidence then what are called the presumptions come into play. They have been criticised as being out of touch with the realities of today but when properly understood and properly applied to the circumstances of today I remain of opinion that they remain as useful as ever in solving questions of title" and "Though normally referred to as a presumption of advancement, it is no more than a circumstance of evidence which may rebut the presumption of resulting trust, and the learned editors of White and Tudor were careful to remind their readers at p763 that 'all resulting trusts which arise simply from equitable presumptions, may be rebutted by parol evidence' This doctrine applies equally to personalty. These presumptions or circumstances of evidence are readily rebutted by comparatively slight evidence." Lord Diplock noted that: "It would, in my view, be an abuse of the legal technique for ascertaining or imputing intention to apply to transactions between the post-war generation of married couples 'presumptions' which are based upon inferences of fact which an earlier generation of judges drew as to the most likely intentions of earlier generations of spouses belonging to the propertied classes of a different social era."
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