Abacus Trust Company (Isle of Man) & Anor v Barr & Ors

Abacus Trust Company (Isle of Man) & Anor v Barr & Ors

The trustee failed in its fiduciary duty to ascertain the settlor's true wishes, bringing the rule in Hastings-Bass into play. However, the appointment is voidable, not void, and the court retains discretion whether to set it aside, considering lapse of time and intervening events.

Parties
Claimant: Abacus Trust Company (Isle of Man); Claimant: Colyb Limited; Defendant: Andrew Barr; Defendant: Brian J Barr; Defendant: Russell Barr
Jurisdiction
England and Wales
Judgment Date
06 February 2003
Procedural Posture
Trusts Application / Judgment on Validity of Deed of Appointment
Outcome
Appointment voidable, not void; further hearing adjourned to determine whether to avoid the appointment and on what terms.
Legal Topics
Trustee Powers, Hastings Bass Rule, Fiduciary Duty, Rectification, Void Vs Voidable Acts
Equity and Trusts Trustee Powers Hastings Bass Rule Fiduciary Duty Rectification Void Vs Voidable Acts

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Parties

Abacus Trust Company (Isle of Man)

Claimant

Colyb Limited

Claimant

Andrew Barr

Defendant

Brian J Barr

Defendant

Russell Barr

Defendant

Procedural Posture

Trusts Application / Judgment on Validity of Deed of Appointment

Legal Issues

  1. 1 Whether the trustee's failure to consider the settlor's true wishes when exercising a power of appointment renders the appointment void or voidable under the rule in Hastings-Bass
  2. 2 Whether a breach of fiduciary duty is required to invoke the rule in Hastings-Bass
  3. 3 Whether the mistake was sufficiently fundamental to invalidate the appointment

Ratio Decidendi

The trustee failed in its fiduciary duty to ascertain the settlor's true wishes, bringing the rule in Hastings-Bass into play. However, the appointment is voidable, not void, and the court retains discretion whether to set it aside, considering lapse of time and intervening events.

Court Disposition

Appointment voidable, not void; further hearing adjourned to determine whether to avoid the appointment and on what terms.

Orders

  • Hearing adjourned for further submissions on relief.