Wilken's Trustees v. Wilken [1904] ScotLR 41_510 (17 May 1904)

Wilken's Trustees v. Wilken [1904] ScotLR 41_510 (17 May 1904)

The deed, though not in the form of a marriage-contract, was entered into in contemplation of marriage and for the protection of the wife during marriage, making it equivalent to a marriage-contract and therefore irrevocable during the marriage.

Citation
[1904] ScotLR 41_510
Parties
First Parties (trustees): Wilken's Trustees; Second Parties (beneficiaries/applicants): Elizabeth Ann Fowler (Mrs Wilken) and John Wilken
Jurisdiction
Scotland
Judgment Date
17 May 1904
Procedural Posture
Special Case (trust Law) / Court of Session Inner House Second Division Final Judgment
Outcome
The Court answered the first question in the negative, holding the trust assignation irrevocable; it found it unnecessary to answer the second question.
Legal Topics
Antenuptial Assignation, Marriage Contract, Alimentary Liferent, Revocation of Trust, Protection of Spouse's Property
Trusts and Estates Family Law Antenuptial Assignation Marriage Contract Alimentary Liferent Revocation of Trust Protection of Spouse's Property

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Parties

Wilken's Trustees

First Parties (trustees)

Elizabeth Ann Fowler (Mrs Wilken) and John Wilken

Second Parties (beneficiaries/applicants)

Procedural Posture

Special Case (trust Law) / Court of Session Inner House Second Division Final Judgment

Legal Issues

  1. 1 Whether an antenuptial trust assignation in contemplation of marriage, providing an alimentary liferent to the wife, is revocable by the spouses after marriage when no issue has been born.

Ratio Decidendi

The deed, though not in the form of a marriage-contract, was entered into in contemplation of marriage and for the protection of the wife during marriage, making it equivalent to a marriage-contract and therefore irrevocable during the marriage.

Court Disposition

The Court answered the first question in the negative, holding the trust assignation irrevocable; it found it unnecessary to answer the second question.

Orders

  • Trustees are not entitled to denude themselves of the trust or pay over the capital to the spouses; the trust must be administered in accordance with the antenuptial assignation.