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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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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...

Nature and classification of trusts—the three certainties

CertaintyIn order for a settlor to create a private express trust the three certainties must be present:•certainty as to the intention of the settlor to create a trust, known as certainty of words, the trust property being intended to be kept separate from other property of the trustee•certainty as to the property to which the trust is to attach, known as certainty of subject matter•certainty as to persons or 'objects' who are intended to benefit, known as certainty of objectsCharitable purpose trusts differ from express trusts for the benefit of persons in respect of the three certainties only in that they do not need to satisfy the certainty of objects, so long as there is a general charitable intention.Certainty as to the intention of the settlor to create a trustThe certainty of intention is satisfied if there is sufficient evidence to show that the settlor or testator clearly intended to create a trust. If the word 'trust' is used, it will normally be a strong indicator that a trust was...

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Recognising crime—red flags and warning signs for staff—law firms

Recognising crime—red flags and warning signs for staff—law firms You must remain alert to the red flags and warning signs of crime potentially taking place in our organisation. While you do not have to behave like a police officer, you must make the sort of enquiries that a reasonable person (with the same qualifications, knowledge and experience as you) would make. This awareness tool identifies typical red flags and warning signs that may indicate that our firm is involved in or is itself being used to commit crime (eg money laundering, terrorist financing, proliferation financing, sanctions offences, bribery, corruption, property or mortgage fraud or organised crime). These factors do not automatically mean that crime is taking place, but you should be aware of them and pay particular attention to matters where a number of factors are present. These red flags and warning signs would normally require further investigation. Methods for committing crime change all the time. We have set out below typical general red flags and warning...

Declaration of express trust for sale by joint tenants to sever the joint tenancy in equity

Declaration of express trust for sale by joint tenants to sever the joint tenancy in equity Date [date] Parties 1 [name of first joint tenant] of [address] 2 [name of second joint tenant] of [address] 3 [name of third joint tenant] of [address] (together referred to as Joint Tenants) background (A) By [a [conveyance OR transfer] dated [date] made between (1) [names of sellers/transferors] and (2) the Joint Tenants OR a settlement dated [date] made between [parties] OR an assent dated [date] made between [name(s) of personal representative(s)]] and the Joint Tenants [and in the events which have happened] the property described in the Schedule (Property) is vested in the Joint Tenants in fee simple as beneficial joint tenants. (B) [The rents and profits of the Property have up to the date of this Deed been collected paid and applied in accordance with the directions and to the satisfaction of the Joint Tenants.] (C) The Joint Tenants wish to sever the joint tenancy...

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A rent deposit paid under a commercial lease is to be held on trust and the deposit entitles but does not require the landlord to withdraw from it in the event of default. Can the landlord elect to forfeit and then use the rent deposit to settle rent arrears after forfeiture?

A rent deposit paid under a commercial lease is to be held on trust and the deposit entitles but does not require the landlord to withdraw from it in the event of default. Can the landlord elect to forfeit and then use the rent deposit to settle rent arrears after forfeiture? Background A rent deposit is a sum of money provided by a tenant to its landlord by way of security for: (i) payment of the rent; and (ii) performance of the covenants found in the lease. The rent deposit deed itself will, in the usual circumstances, set out in detail when a landlord can draw down against the rent deposit and the conditions that the tenant must meet before the rent deposit is repaid to it. The primary benefit of a rent deposit to commercial landlords is that it allows them to have access to an immediate source of funds that can be withdrawn when a tenant acts in a manner which amounts to a breach...

Can one legal owner own the legal title to a property for one or more other beneficial owners as joint tenants?

Can one legal owner own the legal title to a property for one or more other beneficial owners as joint tenants? Under English law relating to registered land, the legal title to land is held by the registered proprietor who may hold that land for himself, for himself and others, or for others. Even in the case of a trust of land there is no minimum number of trustees: see Re Myhill and section 25 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). It is the case, however, that a sole trustee of land cannot give a good receipt for the capital money unless that trustee is a trust corporation. Where there are two legal owners, then they always hold the legal estate as joint tenants so that if one dies the legal title passes automatically to the survivor by the right of survivorship, ie by operation of law. The legal owners, however, might have held the property on trust for themselves...

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Family property and constructive trusts (Khan and others v Khan)

Private Client analysis: The claimants were five siblings who claimed various beneficial interests in four properties (the ‘Properties’). The defendant, their elder brother, stated that the intention within the family had always been that he, as the eldest, would hold the beneficial titles. The claimants made their claim on the bases of express trust, constructive trust of the type found in De Bruyne v De Bruyne and common intention constructive trust. There were also cross claims for account in regard to rental monies associated with the Properties and a counterclaim for damages for failure to collect rent and install tenants. The claimants were successful on almost every basis. Written by Adam Stewart-Wallace, barrister at Ten Old Square.

Private Client weekly highlights—13 June 2024

This week’s edition of Private Client highlights includes: (1) Court of Appeal dismisses Local Authority’s appeal in long running covert medication case (A Local Authority v B); (2) Carey Street Investments Ltd (in liquidation) v Grant Timothy Brown, which concerned an alleged fraudulent breach of a director’s fiduciary duty; (3) ECCTA 2023 changes to the Register of Overseas Entities regime for entities registered before 4 March 2024; (4) Wade v Singh, in which the court held that a declaration of trust was a transaction defrauding creditors; (5) D’Angelin v HMRC, where the FTT dismissed the non-domiciled taxpayer’s appeal and denied business investment relief due to a director’s loan account; (6) HMRC v Burlington Loan Management DAC, a decision of the UT on the anti-abuse provision in the UK-Ireland double tax treaty; and (7) news on the tax aspects of the party manifestos being published ahead of General Election 2024.