Kennedy & Ors v Kennedy & Ors [2014] EWHC 4129 (Ch) (08 December 2014)

Kennedy & Ors v Kennedy & Ors [2014] EWHC 4129 (Ch) (08 December 2014)

The October 2008 Appointment was executed under a fundamental and causative mistake by all trustees as to its effect, making it unconscionable to leave the disposition uncorrected; clause 2.1(c) is a severable provision and is set aside for equitable mistake.

Citation
[2014] EWHC 4129 (Ch)
Parties
Claimant: Brian George Kennedy & Ors; Defendant: Patrick Brian Kennedy & Ors
Jurisdiction
England and Wales
Judgment Date
08 December 2014
Procedural Posture
Chancery Proceedings (part 7) / Judgment After Trial
Outcome
Clause 2.1(c) of the October 2008 Appointment set aside for mistake.
Legal Topics
Rescission for Mistake, Rectification, Capital Gains Tax, Trust Appointments, Equitable Relief
Equity Trusts Tax Rescission for Mistake Rectification Capital Gains Tax Trust Appointments Equitable Relief

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Parties

Brian George Kennedy & Ors

Claimant

Patrick Brian Kennedy & Ors

Defendant

Procedural Posture

Chancery Proceedings (part 7) / Judgment After Trial

Legal Issues

  1. 1 Whether clause 2.1(c) of the October 2008 Appointment should be set aside for equitable mistake
  2. 2 Whether rectification of the October 2008 Appointment is available
  3. 3 Whether the trustees' mistake was sufficiently grave to warrant rescission

Ratio Decidendi

The October 2008 Appointment was executed under a fundamental and causative mistake by all trustees as to its effect, making it unconscionable to leave the disposition uncorrected; clause 2.1(c) is a severable provision and is set aside for equitable mistake.

Court Disposition

Clause 2.1(c) of the October 2008 Appointment set aside for mistake.

Orders

  • Order that clause 2.1(c) of the October 2008 Appointment be set aside.