kasperbauer v griffith case summary
Registered number: 2632423. Moss[xiv] is an interesting illustration of the application of this condition; here, the secret trustee who had been informed of the testators intentions then informed the other two trustees. 1luBbr%xfro"Gmblo]Sz']gF& -3#:fx(8Urn\Qe5fj+=MS#y'cX0QNp ??EX The ambulance, which was only 6 miles away, did not arrive until 17.05. Failure for the trustee to carry out this promise would be unconscionable, [41] something that Equity attempts to prevent, as stated by Gibson LJ in Kasperbauer v Griffith. Constructive trusts are imposed where property is gained through fraud (Rouchefoucauld v Boustead 1897), However, if there is fraudulent misrepresentation, the constructive trust will not arise unless the contract is voided: Lonrho v Al Fayed (No 2) [1991] this is because the victim of the fraud may wish to affirm the transaction despite the fraudulent misrepresentation, Also see the cases of Rochefoucauld v Boustead [1897] and Bannister v Bannister [1948], Bribes and secret comission are essentially synonymous, Any bribe taken by a fiduciary will be held on constructive trust by that fiduciary for the beneficiaries of her fiduciary office this principle has, however, been doubted in recent cases, In Lister v Stubbs, it was held that the claimant could not claim title to the property acquired by the bribes, Reading v Attorney General [1951] took a different view, where the court seemingly awareded a propriety remedy over the bribes, In Attorney General of Hong Kong v Reid [1994], the Privy Council overruled Lister v Stubbs and held that a proprietary constructive trust is imposed as soon as the bribe is accepted by its recipient, But then Sinclair Investments v Versailles Trade Finance Ltd [2011] came and cast doubt on the Reid principle the court of appeal held in this case that there should be no constructive trust as to maximise assets available to unsecured creditors, A constructive trust will be imposed in circumstances in which the claimant has refrained from exploiting some commercial opportunity in reliance on some agreement or pre-contractual understanding reached with the defendant i.e. While this is the most important distinction between the two types, Viscount Sumner in Blackwell v Blackwell[xxiv] has stated that in substance there is no relevant difference between fully secret and half secret trusts because the fraud committed are the same in both situations; in both cases the testators wishes are incompletely expressed in his will. Digestible Notes was created with a simple objective: to make learning simple and accessible. P was a 50 year old woman who resided at a specialist hospital on a long term care ward. CASE FACTS PRINCIPLE Kasperbauer v Griffiths (continued) 3. Secret trusts come in two types: half secret trusts and fully secret trusts. To deny the existence of an agreement between the testator and the intended trustee would be to commit a fraud, and, providing the trust complies with the requisite conditions, unrealistic to uphold a strict reading of statute to allow the trust to fail. Hence, in keeping with a strict view of the statute, secret trusts are not validly created. The project is also designed to simplify the law, ensure that will-makers' wishes are better carried out, and to take account of the diversity of New Zealand families. The principle does not seek to contravene statutory principles simply to reach a fair or moral decision, but to reflect the reality of the agreement between the testator and the secret trustee, almost as if it were a contractual arrangement. Hence it appears that the principle does go some way to allowing the courts to reach decisions they find in good conscience., Equally, Emma Warner-Reed cites the example of section 37 of the Matrimonial Proceedings and Property Act 1970. In Mohns v. Kasperbauer, 220 Iowa 1168, 263 N.W. Rhys DM came to his conclusions by examining two previous cases. It was stated in Ottoway v Norman[xii] that the acceptance could be express or by acquiescence. Intention by testator, or person prepared to die intestate, to create trust binding inheritor of their property. [lvi] Meryl Thomas The longer you look at a [will], the more abstract it becomes construction and secret trusts: Rawstron and Pearce v Freud (2014) Tru. They called the police. In Re Snowden,[xxi] the residue of a testatrixs estate was left to her brother who she had lived for the last six months of her life. Common circumstances giving rise to constructive trusts: Constructive trusts are the major remedy for a breach of fiduciary duty these constructive trusts are institutional, See the case of Keech v Sandford (1726), for example. [xvi] It was held by Romer J that the gift is created at the date of the will, not on the date of the testators death. Like any other trust a secret trust must satisfy the three certainties: intention, subject matter, and objects. Kasperbauer v Griffith requirements Intention Communication Acceptance Reliance Problems Conclusion. Citing Cases. our website you agree to our privacy policy and terms. The Act does not apply to cohabitees; hence equity provides that a contributing cohabitee is entitled to an interest in the property under a constructive trust. Oxbridge Notes uses cookies for login, tax evidence, digital piracy prevention, business intelligence, and advertising purposes, as explained in our By applying this principle, the court can address each secret trust on its own unique facts and circumstances, and, certainly, as Watt states, in the exercise of discretion, a principle or maxim is a more flexible and useful tool than a rule.[lviii], Bannister v Bannister [1948] 2 All ER 133, Katherine, Duchess of Sufflock v Hereden [1560], Matrimonial Proceedings and Property Act 1970 s37, Hudson, A, Great Debates in Equity and Trusts (Palgrave 2014), Hudson, A, Understanding Equity & Trusts, (5th edn, Routledge 2015), Penner, J.E, The Law of Trusts (9th edn, Oxford University Press 2014), Warner-Reed, E, Equity and Trusts, (Pearson 2011), Watt, G, Todd & Watts Cases & Materials on Equity and Trusts, (9th edn, Oxford University Press 2013), Watt, G, Trusts and Equity, (4th edn, Oxford University Press 2010), Council B, Clean Hands Need Not Be Spotless (1993) 143 New Law Journal, Critchley P, Instruments of fraud, testamentary dispositions, and the doctrine of secret trusts (1993) 115 Law Quarterly Law 631, Gardner S, Two Maxims of Equity (1995) 54 (1) Cambridge Law Journal 60, Kincaid D, The tangled web: the relationship between a secret trust and the will [2000] Conveyancer and Property Lawyer 420, King L In Practice: Legal Update: Probate: Secret and half-secret trusts (2014) Law Society Gazette 27, Mee J, Half Secret trusts in England and Ireland [1992] Conveyancer and Property Lawyer 202, Thomas M, The longer you look at a [will], the more abstract it becomes construction and secret trusts: Rawstron and Pearce v Freud (2014) 1 Trust Law International 157. The principle that equity will not be an engine of fraud is applied to uphold secret trusts to ensure that the testators wishes are complied with as far as possible, but the three requirements of intention, communication and acceptance ensure that the equity is retrained from making decisions purely because it considers them in line with good conscience.. Contract to sell land is specifically enforceable where damages is inadequate. Kasperbauer v Griffith 1997 EWCA Civ 2785. . Yet, there are difficulties with the application of this principle; many questions are not fully answered. [42] It is no coincidence then, that communication and acceptance are two of the requirements for the recognition of ST's. [43] Inevitably, however, secret trusts often arise, or are alleged to arise, where the terms of the trust have not been committed to writing in full or at all. Also, It is essential that the terms of the intended trust are consistent with the later will. Defending the claim, Mr Ison conceded that Ms Richards had had some wishes and intentions regarding the jewellery, including that some be given to the claimant, and that he had agreed and wished to respect her wishes. This was confirmed by the Court of appeal in Kasperbauer v Griffith [2000]. Registered Office: Artillery House, 11-19 Artillery Row, London SW1P 1RT, United Kingdom. Kasperbauer v Griffith [2000] WTLR 333, where the Court of Appeal took the view (agreeing with Nourse J in Re Cleaver [1981] 1 WLR 931 at 9470 that a constructive trust would be imposed to compel a secret trustee to hold trust property as had been agreed with the testator. However, following Sir Robert Megarry VC in Re Snowden,[xx] the ordinary civil standard of proof on the balance of probabilities is most likely sufficient on the assumption that the claimant has not acted fraudulently. The most equivocal case is Davies v Otty, above 7, . [l] John Mee, Half Secret trusts in England and Ireland [1992] Conv 202, [lii] Patricia Critchley Instruments of fraud, testamentary dispositions, and the doctrine of secret trusts 115 L.Q.R.1999 631, 641. In response to this, the courts have endeavoured to honour the intentions of the testator. In the case of Re Stead,[vi] there were two trustees, but the testator only informed one of their intentions. Requirements set out in Kasperbauer v Griffith (2000) 1.Intention 2.Communication to the intended trustee 1 Revision: Equity [SECRET TRUSTS] 3.Acceptance of the trust by the trustee Must comply with the three certainties like any express trust Fully Secret Trusts * Summary of this case from Amster v. Mulberg. The failure of a half secret trust: consequences for the property. When everyone had gone, Gorney entered the car, again setting off the alarm and arousing the neighborhood. [xxxvi] This is otherwise known as the fraud theory.. Why should equity, over a mere matter of words, give effect to them in one case and frustrate them in the other?[xxv], Blackwell v Blackwell[xxvi], described by Watt as a classic instance of a valid half secret trusts[xxvii] is the basis for another noteworthy requirement regarding half secret trusts. o 2. The Court asked whether the testator could have intended the wishes expressed in the letter to be the subject of a legal sanction if not followed. Buy the full version of these notes or essay plans and more in our GDL Equity and Trusts Notes. In this case, Boyes made a gift in his will to his executor, his solicitor having already requested that the executor accepted that instruction to hold the gift on trust, but had not actually communicated the names of those beneficiaries. A constructive trust will arise at the time that the necessary conditions are met and will be retrospective; while estoppel concerns asserting an equitable claim against the true owner.. A more recent version of these Secret Trusts If by mistake, the claimant conveys title to the wrong person, or the wrong property is conveyed to the intended person, or the claimant is otherwise induced to act by reason of mistake, the transfer can be set aside. Thus, despite the solicitors readiness to perform the terms of the secret trust, it failed, and it was held that he held the property on resulting trust for the estate. Secret trusts therefore arise where a testator decides to leave ostensible legacies to someone whom the testator really wants to act as trustee for an intended but undisclosed beneficiary of that legacy provided always that the obligation is a trust obligation and not merely a moral obligation: Under the general principles of constructive trusts, it would be unconscionable for the fraudster to retain property acquired by fraud (, In Re Ciro Citterio Menswear, land was acquired by 2 directors, by money was loaned to the company in breach of the Companies Act 1985. Some woodland was for sale and the parties agreed that the defendant would bid for it for them both, with the exact proportions on which the land was to be held to be agreed later. 52 0 obj <<9fe094da4c9bcd2a9516bcc6aae0ca8d>]>>stream Honesty is irrelevant i.e. In Kasperbauer v Griffiths (2000 WTLR 333) the England and Wales Court of Appeal had set the test as whether the testator intended a trust or 'a mere moral or family obligation'. Standard of proof: onus is on the person claiming that a trust exists: standard is the normal civil standard (Re Snowden) Justification for enforcing secret trusts: 1. Her niece, Mrs Titcombe, then claimed that Mr Ison and Ms Richards had agreed that Mr Ison would give the jewellery to Mrs Titcombe after Ms Richards' death. privacy policy. She claimed that as a result Mr Ison now held the jewellery on a bare (secret) trust for her. In half secret trusts the wording of the will indicates that there is a trust. available here. What is most significant here was that it was clear that they knew of the existence of their obligation but failed to physically object. students are currently browsing our notes. Having detailed the types of secret trust and outlined the formalities required for them to be valid, this essay will now turn to the enforcement of secret and half secret trusts using the equitable principle that statute will not be an instrument of fraud. Secret trusts - mechanism: either a) outright gift to the intended trustee in the will (fully secret) or gift in the will to the intended trustee stated to be 'on trust' (half secret), 4. In Re Baillie, a half-secret trust case, it was held that s 53(1)(b) must be complied with. First in Kasperbauer v Griffiths [2000] WTLR 333 the Court of Appeal had summarised the law in this area and pointed out that the question was whether the testator intended a trust or a mere moral or family obligation.. United States v. Griffith United States Supreme Court 334 U.S. 100 (1948) Facts In 1934 four companies that operated movie theaters (collectively, the theater companies) (defendants) in Oklahoma, Texas, and New Mexico had theaters in 37 towns. Of course, in one sense, it would indeed not be in good conscience to deny a testator the ability to distribute their estate as they see fit. Following the death of the first party, the second party holds the property on a constructive, FHR European Ventures LLP v Cedar Capital Partners LLC [2014], Chase Manhattan v Israel-British Bank [1981], Westdeutsche Landesbank v Islington [1996], Attorney General of Hong Kong v Reid [1994], Sinclair Investments v Versailles Trade Finance Ltd [2011], Thus, a person who steal property will have dealt unconscionably with it (Westdeutshe Landesbank); a person who receives a bribe in the conduct of a fiduciary office will have dealt unconscionably with the property representing that bribe (AG for HK v Reid 1994); a person who takes property by means of fraud will have dealt unconscionably with it (Westdeutshe Landesbank) the defendant will be a constructive trustee in all these cases, Institutional constructive trusts arise at the moment the conduct occurs, on the facts, Remedial constructive trusts arise at the date of the courts judgment, He says a remedial constructive trust is different as it lies in the discretion of the court, E.g. . The role for restitutionary remedies for unjust enrichment: Review of Recent Cases, Public Institution for Social Security v Al-Rajaan and others [2022] EWCA Civ 29, An unwarranted approach - Costs orders against solicitors acting without authority, Lessons from a successful fraudulent calumny claim: Whittle v Whittle [2022] EWHC 925 (Ch), Checklist: Supplier contracts and unforeseen events (USA), Checklist: Processor due diligence (data protection and cybersecurity) (UK), Checklist: What to include in your organisations privacy notice (UK). Accordingly, no trust was created and he found for the defendant Mr Ison (Titcombe v Ison, unreported, ChD, 28 January 2021). The jewellery had belonged to one Ms Richards. The testator declared in front of his family that he would bequeath his house and sum of his pension benefit to his wife on the condition that the money would be used to discharge the mortgage on the house. An alternate (but weaker) theory: dehors the will, However, it is false to state that is solely thus equitable principle that enables the enforcement of secret trusts. 2) beneficiary's share did not lapse upon death (dubious decision : see below), Re Young: secret trust benefited the testator's chauffeur who had witnessed the will (see below), Requirements set out in Kasperbauer v Griffith (2000), 2.Communication to the intended trustee 1, 3.Acceptance of the trust by the trustee Must comply with the three certainties like any express trust Fully Secret Trusts, PS100,000 to Arthur - clandestine meeting with Arthur - to tell him that he is actually a trustee - Fully Secret Trust (FST) - looks like an outright gift to Arthur, If it fails then the fully secret trustee will take the legacy absolutely, Must take place any time before death, whether before or after the signing of the will: Walgrave v Tebbs: the legatees had not been informed of the testator's wishes in lifetime so they took free from the trust, 2. No decisions were made on the various dispositive motions as settlement negotiations, with the assistance of Judge Weiner, began to gain some traction in the latter months of 2005. Ottoway v Norman[iii] details with the three requirements for a valid secret trust to be created. The theory first came to light in Katherine, Duchess of Suffolk v Hereden[xxxvii]. If the intended sanction was the authority of the court, a trust is created. 41 0 obj <>stream Wallgrave v Tebbs 1865 Communication for FST must be before the testator's death. Who exactly is it that would be defrauded if the trust were to fail on a statutory formality? The judge did not make an order for specific performance, however, where property was obtained by one party as part of a joint enterprise, the property was held on constructive trust for both parties. Study EXAM NOTES - Secret Trusts flashcards from Ryhan Uddin's class online, or in Brainscape's iPhone or Android app. This is a crucial distinction for half secret trusts, as if the will refers to a trust that has not yet been communicated, it will not be able to take effect as a half secret trust, but instead becomes a void attempt to dispose of the estate.[xxxii]. She had no children and, on her death, left her whole estate to her friend, Mr Ison. In the second scenario, wherein the legatee understood that they were never intended to keep the property, it is in the interests of their conscience to prevent them from keeping the gift. [xli] In this case, Ms Bannister conveyed a house to her brother in law, who then orally agreed to allow her to live in it rent free as long as she wished. endstream endobj Diana Kincaid writes that traditionally the basis of the enforcement of secret trusts was said to be fraud[xlviii] but maintains that dehors the will is now the currently accepted view.[xlix] Likewise, John Mee states quite absolutely that the doctrine of half-secret trusts operates dehors the will.[l], However, for the most part, the majority of modern academic thought is in opposition to the au dehors theory. intention, This agreement must amount to a clear contract in law, Conduct may infer an agreement to create a Mutual Will, but usually it is cited in the Wills itself that the wills are mutually binding, See the cases of Re Oldham [1925] and Re Cleaver [1981], If the Mutual Will is broken by the first person, their estate is liable in damages: Robinson v Ommanney, For a long time it was assumed no remedy could be obtained against the second party to die, due to the privity doctrine however, it may now be possible for the beneficiary to enforce the contract in his own right under the Contracts Act 1999, Nevertheless, if a Mutual Will creates a trust in favour of a beneficiary they can enforce the trust against the survivor: In the Goods of Heys [1914] and s7(1) Contract Act 1999, FOOL-PROOF methods of obtaining top grades, SECRETS your professors won't tell you and your peers don't know, INSIDER TIPS and tricks so you can spend less time studying and land the perfect job. Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. In this case, they are not permitted to keep the property. It stated that there firstly must be an intention to create a trust, second, a communication of that intention and, lastly, acceptance of the trust obligation. Equally, secret trusts by their very formation do not comply with the Wills Act 1937. It is the secret nature of these trusts which cause difficulty with their enforcement. This is not possible in half secret trusts: unlike fully secret trusts, intention is obvious as it is stated in the will. A secret trust need not be set out in writing: Ottaway v Norman [1972] Ch 698. Warner-Reed however does not characterise this as equity contravening the law, but plugging the gap where the law makes no provision for a particular set of circumstances, as opposed to overriding the law as it already exists.[xlii], Warner-Reeds description of plugging the gap, although arguably somewhat linguistically blunt, is perhaps a more accurate depiction of the principles operation than the assertion than in good conscience. Good conscience implies a level of imposing morality that the court does not reach. An example of this is Re Boyes. This chapter on the disposal of property on death discusses the following: the general characteristics of wills; the doctrine of incorporation by reference; the origins of the secret trust; the difference between fully and half-secret trusts; the three elements of a secret trust: intention, communication, and acquiescence; mutual wills; donatio Kasperbauer; Griffith v Griffith; Havens; Zorab and Griffith: CA 21 Nov 1997 Citations: [1997] EWCA Civ 2785 Jurisdiction: England and Wales Citing: Cited - Sekhon, etc v Regina CACD 16-Dec-2002 The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements. Showtime granted Mayweather the exclusive right to exhibit and distribute, and authorize the exhibition and distribution of, the fight. Application of the principle to secret trusts in good conscience, Undoubtedly, this principle is of great importance to the enforcement of secret and half secret trusts, and as seen above, it had been used by the courts to reach a fairer decision than statutory or common law formalities would allow. Additionally, this use of the principle illustrates the willingness of equity to contravene statutory principles to achieve a result which the court considers to be in line within the original spirit of an agreement if statute does not allow for this. See also Kasperbauer v Griffith [2000] WTLR 333. Secret trusts may be enforceable despite not conforming with the Wills Act. Communication of trust by trustee ('outside will') o 3. He subsequently then attempted to evict Ms Bannister, and as the agreement was not in writing as required by section 53(1)(b) of the Law of Property Act 1925, it was legally unenforceable. If first to die performs, then it will be unconscionable for second to deviate from terms. As the case law shows, the requirements ensure that secret trusts are guided by more than equity; the rules regarding intention, communication and acceptance confirm that the wishes of the testator can be properly followed. This is achieved by a . Perhaps the most difficult issue is where the legal owner has responsibility for and meets all the mortgage payments, but is only in a position to do so because the other partner is meeting other household expenses, such as utility bills, maintenance etc. It may not, for arguments sake, be of good conscience to leave a larger amount of property to a mistress than to a wife. A point of discussion was the burden of proof upon the claimants. On the facts, Miss Hodge was aware of Ottoways intention and had agreed to it. Normal requirements for testamentary trusts: must comply with s 9 Wills Act 1837, 2. The first is that if the intended secret trustee was not aware of the trust, they will be able to the property for themselves. Home. Understand your clients strategies and the most pressing issues they are facing. To say that asecrettrust exists outside the will is to give a false impression.[li] In response to the argument that the trust falls inter vivos, outside the scope of section 9 of the Wills Act, Critchley comments that this construction of the facts seems a little implausible, since the average testator in a secret trust case arguably believes that he is stating the trusts on which his property will be held after his death, rather than declaring an immediate trust.[lii], Furthermore, J E Penner bluntly states that the the dehors the will theory is fundamentally unsound[liii]. [xxxiv] Simon Gardner Two Maxims of Equity (1995) 54 (1) CLJ 60, 61. January 26, 2009. 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