Howell & Ors v Lees-Millais & Ors [2009] EWHC 1754 (Ch) (17 July 2009)

Howell & Ors v Lees-Millais & Ors [2009] EWHC 1754 (Ch) (17 July 2009)

The power of appointment conferred by the 1977 Appointment is exercisable throughout the trust period, notwithstanding the attainment of age 25 and vesting 'absolutely' by a beneficiary; the use of 'absolutely' does not, in the context of the instrument as a whole, render the gift indefeasible or bar further...

Source-derived case information.

Citation
[2009] EWHC 1754 (Ch)
Parties
Claimant: Paul Jonathan Howell; Claimant: Alison Ruth Robinson; Claimant: John Neal Thompson; Defendant: Marcus Lees-Millais; Defendant: Lorna Milne Joicey; Defendant: Fiona Astrid Lees-Millais; Defendant: Hector Forwood (a child, by his litigation friend Edward Forwood); Defendant: Lucinda Loraine Newall; Defendant: Alexander Newall
Jurisdiction
England and Wales
Judgment Date
17 July 2009
Procedural Posture
Part 8 Claim (trusts) / Judgment After Hearing on Construction of Trust Deed
Outcome
Declaration granted in favour of paragraph 1(b) of the Claim Form; power of appointment is exercisable for the time being throughout the trust period.
Legal Topics
Construction of Trust Deeds, Powers of Appointment, Vesting of Interests, Interpretation of 'absolutely' in Trust Instruments
Trusts and Estates Equity Construction of Trust Deeds Powers of Appointment Vesting of Interests Interpretation of 'absolutely' in Trust Instruments

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Parties

Paul Jonathan Howell

Claimant

Alison Ruth Robinson

Claimant

John Neal Thompson

Claimant

Marcus Lees-Millais

Defendant

Lorna Milne Joicey

Defendant

Fiona Astrid Lees-Millais

Defendant

Hector Forwood (a child, by his litigation friend Edward Forwood)

Defendant

Lucinda Loraine Newall

Defendant

Alexander Newall

Defendant

Procedural Posture

Part 8 Claim (trusts) / Judgment After Hearing on Construction of Trust Deed

Legal Issues

  1. 1 Whether the trustees' overriding power of appointment is exercisable after a beneficiary attains a specified age and the gift vests 'absolutely'
  2. 2 Whether the use of the word 'absolutely' in the trust instrument renders the gift indefeasible upon vesting

Ratio Decidendi

The power of appointment conferred by the 1977 Appointment is exercisable throughout the trust period, notwithstanding the attainment of age 25 and vesting 'absolutely' by a beneficiary; the use of 'absolutely' does not, in the context of the instrument as a whole, render the gift indefeasible or bar further exercise of the power.

Court Disposition

Declaration granted in favour of paragraph 1(b) of the Claim Form; power of appointment is exercisable for the time being throughout the trust period.

Orders

  • Declaration that the power of appointment is exercisable for the time being throughout the trust period, notwithstanding the attainment of age 25 by Lucinda's first or only son.
  • Representation orders made as sought by the claimants.