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Trust disputes—table of cases

Trust disputes—table of cases Existence and validity of trusts Topic Case name Summary Author Jurisdiction Existence and validity of trusts Provincial Equity Finance Ltd v Dines (née Breda) [2023] EWHC 103 (Ch) News Analysis: ‘By prosperous voyages I often made…And the great care of goods at random left’—resulting trust and the dominion of express trusts (Provincial Equity Finance Ltd v Dines and a Tragedy of Errors)This case demonstrates the practical difficulty of establishing a claim for resulting trust where a chaotic deceased used bank accounts for mixed purposes and establishes that an express trust may supplant the presumption of resulting trust even where the party advancing funds is not a party to the express trust. Nicholas Holland, McDermott Will & Emery UK LLP England & Wales Existence and validity of trusts Attorney General v Zedra Fiduciary Services (UK) Ltd and others [2022] EWHC 102 (Ch) News Analysis: Cy près scheme approved for £600m charitable trust to be applied to reduce the National Debt (Attorney General v Zedra Fiduciary Services (UK)...

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Elderly clients disposing of property interests

Elderly clients frequently seek advice from their professional advisers on how to dispose of their house to relatives, either permanently or so that they no longer own it but can remain living there. The first is relatively simple but often not sensible, while the latter can create any number of problems. Property interests consist of those in freehold and leasehold property. Leasehold property is generally understood to mean a long lease that looks and feels like full freehold ownership. However, clients may sometimes also wish to pass on various types of shorter tenancies.A property is generally the client's single most valuable asset both in monetary and psychological terms. Property ownership can, in some circumstances, defeat claims to benefits that the client feels should be available to them but, on the other hand, can also be important to the client’s continued independence. There is no doubt that the fear of future care is a motivating factor in the attempt by many elderly clients to have their cake and eat it.It should...

Nature and classification of trusts—the nature and classification of trusts

Nature of trustsThe trust conceptTypically, the settlor is the original owner of property and creates a trust by conveying it to one or more trustees and manifesting an intention that it is to be held on trust for one or more beneficiaries or for the accomplishment of a particular purpose. The trustees become owners at common law and hold the property or rights in trust for the beneficiaries (cestuis que trust) or that purpose. The trustees come under an equitable obligation enforceable by the beneficiaries. No trust is created, whatever the intention of the settlor, unless legal title is vested in the trustee (this is known as constituting the trust).DefinitionWhile the trust concept is recognisable, a definition is not so easy.The definition set out in The Law of Trusts and Trustees 10th edition by Underhill and Hayton was adopted by the Court of Appeal in Green v Russell per Romer LJ: 'A trust is an equitable obligation, binding a person (who is called a trustee) to deal with property over...

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Simple Quistclose Trust

Simple Quistclose Trust This [Deed OR Agreement] dated [•] 20[•] is made Parties 1 [insert name], a company incorporated in England and Wales with registered number [insert company number] whose registered office is at [insert address] (the [ Settlor OR Lender]); and 2 [insert name] of [insert address] (the [Trustee OR Borrower]). Background 1 Definitions and interpretation 1.1 Definitions In this [Deed OR Agreement], unless otherwise provided: 1.1.1 The Trust Fund means the sum of [•] paid by the Settlor to the Trustee by [cheque OR bankers draft OR transfer etc] and held by the Trustee at [•] Bank plc in account number [•] 1.1.2 The Specified Purpose means [•] 1.2 Interpretation 1.2.1 In this [Deed OR Agreement], unless the context otherwise requires: (a) words in the singular include the plural and vice versa; (b) including means including without limitation; (c) where an act is required to be performed promptly, it must be performed as soon as reasonably possible from...

Cohabitant claims under the Trusts of Land and Appointment of Trustees Act 1996—client guide

Cohabitant claims under the Trusts of Land and Appointment of Trustees Act 1996—client guide This document provides general guidance regarding the property rights of cohabitants and claims under the Trusts of Land and Appointment of Trustees Act 1996. Your family lawyer will be able to provide specific advice based on your circumstances. Who can apply? Cohabitants do not have the same rights to make property claims as married couples or civil partners. Instead, disputes between cohabitants regarding their interests in a property are determined in accordance with the law of trusts. The 'common law' wife or husband does not exist in law, and claims by cohabitants are very limited in comparison with spouses or civil partners. In some circumstances it may be possible to make a claim on behalf of a child (see: Financial arrangements for children—client guide). There are two main ways in which a cohabitant may have an interest in a property: • as a joint owner, or • where the property is in the...

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A property is registered in the sole name of one cohabitant party (A) and the other cohabitant party (B) asserts that they have a beneficial interest. Both parties have vacated (B with the parties' child) and A is renting the property out. Does B have a claim in respect of any rental profit received?

A property is registered in the sole name of one cohabitant party (A) and the other cohabitant party (B) asserts that they have a beneficial interest. Both parties have vacated (B with the parties' child) and A is renting the property out. Does B have a claim in respect of any rental profit received? Where a property is held by one legal owner (party A) but another person (party B) claims to be entitled to a beneficial interest in the property, party B’s interest will usually arise as a result of either a resulting or a constructive trust. The basis for a resulting trust is the presumed intention of the parties. It will arise where land is conveyed to one person such as party A, but the purchase money is provided in whole or in party by another, party B. A constructive trust will be imposed in a number of situations, however, two are most material for present purposes. Firstly, a constructive trust will be imposed where it would be...

Is there a definition of ‘beneficiary’ as applied in Brussels I (recast) ie does this cover companies/individuals?

Is there a definition of ‘beneficiary’ as applied in Brussels I (recast) ie does this cover companies/individuals? The term ‘beneficiary’ in relation to jurisdiction is referred to in Regulation (EU) 1215/2012, Brussels I (recast) in: • Articles 7(6) and 25(3) of Regulation (EU) 1215/2012, Brussels I (recast) when dealing with trusts, and • section 3 of Regulation (EU) 1215/2012, Brussels I (recast) (starting at Article 10 of Regulation (EU) 1215/2012, Brussels I (recast)) and Articles 26 and 31(4) of Regulation (EU) 1215/2012, Brussels I (recast) in relation to Insurance contracts However, there is no definition of beneficiary within the regulation. It may be that the term is not defined within the regulation as the term beneficiary would be a defined term within either the trust instrument or the insurance contract. The definition would, therefore, be taken from the underlying trust instrument or insurance contract and so a definition is not required within the regulation. Trusts When dealing with a trust, the court with jurisdiction will generally be that where...

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Forging documents in litigation constituted an unlawful means conspiracy (Takhar v Gracefield Developments)

Dispute Resolution analysis: Having set aside an earlier judgment on the basis that the claim had been defeated by a forged document, the claimant was able to use that same forgery to found a successful new claim for unlawful means conspiracy. Written by Phillip Patterson, barrister, Gatehouse Chambers.

Dispute Resolution weekly highlights—18 July 2024

This week's edition of Dispute Resolution weekly highlights includes analysis of a number of key DR developments and key judicial decisions including the King’s Speech 2024 and the Court of Appeal decision in Process & Industrial Developments Ltd v The Federal Republic of Nigeria (order for costs and foreign currency); dates for your diary; details of our most recently published content; and other information of general interest to dispute resolution practitioners.