Module 6 - cases / legislation

Question 1

Clark v Clark’s Executrix (1989)

Answer 1

eg of auctor in rem suam (acting in own cause). Executors contracted to sell a heritable property forming part of the Trust estate to 3rd parties. Those 3rd parties the assigned their right to one of the executors in her personal capacity. Transaction was struck down as a clear person conflict between the executrix duty and her personal interest - She had resigned before the assignaiton in her favour had taken place but the Court was satisfied that the arrangement had been agreed prior to such resignation and therefore the arrangement was tainted.

Question 2

Johnston v Macfarlane

Answer 2

Truster granted trust deed containing a provision allowing the Trustees to sell the property to any beneficiary. There were 3 beneficiaries, one was a Trusee. The trustees sold the property to the beneficiary who was also a trustee. but this was challenged. Court struck down the transaction on the basis that it offended against the strict principle auctor in rem suam. The Court took the view that it did not matter that it might be implied that the Truster had envisaged the possibility of sale to the beneficiary who was also a Trustee - he did not specifically state this.

Question 3

Taylor v Hill house trustees 1901.

Answer 3

Dont know specifics of the case but it was quoted at the end of this explanation about how to get around the principle of auctor in rem suam.- ie Authorisation by the beneficiaries -

all beneficiaries must have capacity to consent to the transaction which might otherwise offence against the principle. There also can be no evidence of any undue pressure being placed o nthe beneficiaries by the Trustees. Onus of satisfying the Court rests with the relevant Trustee

Question 4

Coat’s Trustees Petitioners 1914

Answer 4

Petition lodged in the Court of Session to permit a trustee to bid for part of a trust heritable property at a public auction. The Court of Session granted authority. However this is not an authority for the principle that the C of S has power to authorise a trustee to act as auctor in rem suam. In this case the beneficiaries had all consented and the petition was because the trustees wished to carry out the type of sale not envisaged in the Trust Deed.

Question 5

Grigor Medical Bursary Fund Trustees Petitioners 1903

Answer 5

Conditions needed for variation of Trust - need to show Impossibility - The Trustees must show that the purposes have become clearly impossible.

In Grigor Medical Bursary Fund Trustees Petitioners 1903 the fund was for young men from Nairn to study medicine. Trustees were finding it difficult to attract suitable male candiates and sought to widen it to include you women. Court refused - Trustees must show that never again would there be sufficient number of eligible male candidates - this decision presents a substantial hurdle for Trustees

Question 6

Glasgow Royal Infirmary v Magistrates of Glasgow 1888 -

Answer 6

Conditions needed for variation of Trust - need to show Approximation- The Trustees must show that the purposes have become clearly impossible.the new scheme suggested must bee approximate to the old.

Glasgow Royal Infirmary v Magistrates of Glasgow 1888 - trust to build a fever hospital but town council built one so trust unnecessary. Trustees sought to divide the funds between the GRI to build nurses homes and a society for fever and smallpox hospitals. Trust varied for the latter but not the former as not approximate