Trusts - 1997

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This page lists 16 cases, and was prepared on 28 October 2012.

Richard -v- Mackay (1997) 11 Tru LI 23
1997 Millett J	Trusts	Casemap 1 Citers
	In construing a trust deed, it is not the task of the court to say how it would exercise any discretion given, but "… to ensure that the proposed exercise of the trustees' powers is lawful and within the power and that it does not infringe the trustees' duty to act as ordinary, reasonable and prudent trustees might act, but it requires only to be satisfied that the trustees can properly form the view that the proposed transaction is for the benefit of beneficiaries or the trust estate." and "It must be borne in mind that one consequence of authorising the trustees to exercise a power is to deprive the beneficiaries of any opportunity of alleging that it constitutes a breach of trust and seeking compensation for any loss which may flow from that wrong. Accordingly the court will act with caution in such a case…"

Brown and Another -v- Bennett and Others (1)
3 Jan 1997 ChD	Trusts
	Range of constructive trusteeship is not to be extended to create liability for company directors for mere breach of duty.

Anglo Corporation Limited -v- Peacock Ag [1997] EWCA Civ 992
12 Feb 1997 CA	Contract, Trusts
	Link[s] omitted

Ghana Commercial Bank -v- C and Others
3 Mar 1997 QBD	Trusts
	'[C]onstructive trustee' must be read allowing both proprietary and personal claimants.
	Rules of the Supreme Court Order 11 R1

Paula Rachel Armitage -v- Richard Nurse; Dudley Thomas Bowman Stammers and Brian Arthur Stammers (the Personal Representatives of Arthur George Stammers, Deceased); Margaret Lambert Mcleod Flatman (the Personal Representative of Keith Flatman, Deceased, S [1997] EWCA Civ 1279; [1998] Ch 241; [1997] 2 All ER 705; [1997] 3 WLR 1046
19 Mar 1997 CA Millett LJ	Trusts, Torts - Other	Casemap 1 Cites 1 Citers
	A clause in a trust deed may validly excuse trustees from personal liability for even gross negligence. The trustee was exempted from liability for loss or damage "unless such loss or damage shall be caused by his own actual fraud". Held: The trustee was under no liability in absence of any dishonest intention. Millett LJ criticised the existing law. Care was needed when applying concepts relevant to the tort of deceit to a breach of trust because breaches of trust were of many different kinds. An exemption clause could exclude the trustee from liability for loss and damage to the trust property "no matter how indolent, imprudent, lacking in diligence, negligent or wilful he may have been, so long as he had not acted dishonestly". Millett LJ held that a fraudulent breach of trust: 'simply means dishonesty. I accept that formulation put forward by Mr Hill on behalf of the respondents which (as I have slightly modified it) is that it connotes at the minimum an intention on the part of the trustee to pursue a particular course of action, either knowing that it is contrary to the interests of the beneficiaries or being recklessly indifferent whether it is contrary to their interests or not. It is the duty of a trustee to manage the trust property and deal with it in the interests of the beneficiaries. If he acts in a way which he does not honestly believe is in their interests then this is acting dishonestly. It does not matter whether he stands or thinks he stands to gain personally from his actions. A trustee who acts with the intention of benefiting persons who are not the objects of the trust is not the less dishonest because he does not intend to benefit himself.'
	Link[s] omitted

Arab Monetary Fund -v- Jawad Mahmoud Hashim; Salwa Al Rufaiee, etc [1997] EWCA Civ 1298
21 Mar 1997 CA Lord Bingham of Cornhill CJ	Trusts, Contempt of Court	Casemap 1 Citers
	When a person in contempt of court asks to be heard by the court before his contempt is purged, the preferable approach is to ask: 'whether, in the circumstances of an individual case, the interests of justice are best served by hearing a party in contempt or by refusing to do so, always bearing in mind the paramount importance which the court must attach to the prompt and unquestioning observance of court orders.'
	Link[s] omitted

Geoffrey Silverwood (Executor of the Estate of Daisy Silverwood) -v- Arnold Silverwood; Andrew Silverwood and Gillian Whiteley [1997] EWCA Civ 1401; (1997) 74 P&CR 453
15 Apr 1997 CA	Trusts	Casemap 1 Cites
	The deceased had withdrawn a capital sum from her bank, and given it to her grandchildren before claiming income support. She had not declared the sums given away. The judge (Harry Walker) had held that there had been no gift, and that a resulting trust had arisen: "... if there has been a contract or a trust with an illegal object or an illegal purpose then if the plaintiff can assert his rights under the contract or the trust without relying upon the illegality itself, he is entitled to succeed against the defendant." The defendants appealed an order for enforcement of the trust. Held: "It would be absurd as well as unjust if a claimant, claiming a resulting trust, could not lead evidence of fraud in order to disprove a spurious defence." The appellants had not been able to establish a reason for the gift withourt relying upon the fraud. The appeal failed.
	Link[s] omitted

Goodchild and Another -v- Goodchild; Re Goodchild [1997] EWCA Civ 1611; [1997] 3 All ER 63; [1997] 1 WLR 1216
2 May 1997 CA Lord Justice Leggat, Lord Justice Morritt, Lord Justice Phillips	Wills and Probate, Trusts	Casemap 1 Cites 1 Citers
	The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, creating a trust from which he should not resile, and an exceptional circumstance under the 1975 Act. Held: A claim that mutual wills had been made requires clear evidence of a contract or agreement between the two testators. It is wrong to import into that doctrine lesser standards based upon secret trusts and similar: 'Two wills may be in the same form as each other. Each testator may leave his or her estate to the other with a view to the survivor leaving both estates to their heir. But there is no presumption that a present plan will be immutable in future. A key feature of the concept of mutual wills is the irrevocability of the mutual intentions. Not only must they be binding when made, but the testators must have undertaken, and so must be bound, not to change their intentions after the death of the first testator.'
	Inheritance (Provision for Family and Dependants) Act 1975
	Link[s] omitted

Tracy Stone -v- Khalid Mahmood [1997] EWCA Civ 1749
21 May 1997 CA	Land, Trusts
	Link[s] omitted

Roshview Forwarding Limited (In Liquidation) -v- Roshview International Limited; Roshview Export Import Limited; Mark Adu-Gyamfi and Comfort Adu-Gyamfi [1997] EWCA Civ 1810
6 Jun 1997 CA	Land, Trusts
	Link[s] omitted

Foskett -v- McKeown and Others [1997] EWCA Civ 1747; [1998] Ch 265
27 Jun 1997 CA Hobhouse LJ	Trusts, Financial Services	Casemap 1 Citers
	Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster's mother but he had power to renominate himself as sole beneficiary. One or two premiums were paid by the defendant himself. Held: The representation order was confirmed. Trust money which had been used by a trustee fraudulently to invest in a life policy, did not give the eventual beneficiaries of the trust an interest in the proceeds of that policy. Nevertheless the purchasers were entitled to be repaid out of the proceeds of the Policy such of their money as could be traced into the premiums paid under the Policy.
	Link[s] omitted

Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) -v- Commissioners of Inland Revenue [1997] EWCA Civ 2212; [1997] 4 All ER 395; [1997] STC 1234
28 Jul 1997 CA Lord Justice Nourse, Lord Justice Evans And Lord Justice Millett	Inheritance Tax, Trusts	Casemap 1 Cites 1 Citers
	The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers. Held: (Millett LJ dissenting) The conveyance to the solicitor left the solicitor holding the property as bare trustee for the deceased. It was not possible for such a trustee then to create effective leases in favour of the beneficiary of that trust. Transactions allowing transfer and leaseback of house were ineffective to avoid Inheritance Tax; since there had been a benefit reserved. Millett LJ observed that for overreaching purposes there must be not merely two parties to the transaction but two independent parties who are capable of dealing with each other at arm's length.
	Finance Act 1986 102(1)
	Link[s] omitted

Safdar -v- Hassan; Ahmed and Javid [1997] EWCA Civ 2676
7 Nov 1997 CA	Land, Trusts
	Link[s] omitted

Binning Bros Limited (In Liquidation) -v- Thomas Eggar Verrall Bowles (a Firm) [1997] EWCA Civ 2688
11 Nov 1997 CA	Trusts, Limitation, Contract	Casemap 1 Cites
	Link[s] omitted

David Rhodri Kasperbauer; Sian Sarah Griffith -v- (L) Enyd Bevan Griffith; George Walter Havens; John Spencer Zorab and Rosemary June Griffith [1997] EWCA Civ 2785
21 Nov 1997 CA	Trusts	Casemap 1 Cites
	Link[s] omitted

Leslie Norman Parlett -v- Guppys (Bridport) Limited Norah Parlett David Harry Parlett [1997] EWCA Civ 2907
4 Dec 1997 CA	Trusts	Casemap 1 Cites 1 Citers
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