Smith v Herbert [2014] EWHC 4177 (Ch)

WTLR Issue: June 2016 #160

TIMOTHY JOHN MEDLYCOTT TREGONWELL MONRO SMITH

V

1. PAUL ARTHUR HERBERT

2. SUSAN ELIZABETH FAVRE

3. SIR MERVYN TREGONWELL MEDLYCOTT, BT

4. PHILADELPHIA JANE OLIVER

5. PHILIP ANTHONY SMITH

6. CATHERINE FRANCES SARAH SMITH

7. MEDLYCOTT TRUSTEES (NO 1) LIMITED

Analysis

The claimant was, together with his sister and brother, a beneficiary entitled to an interest in possession in land comprised within the Edmondsham Estate (children’s property) by virtue of a deed of appointment made in 1979 in exercise of a power contained in a settlement dated 17 March 1965 created by the late TAH Medlycott. Each life tenant was given power to settle his or her share on trust for such one or more of his or her children in such shares as should be appointed by deed or will. In default of appointment, each life tenant’s children were entitled to the capital in equal shares subject to a power given to the trustees to enlarge the life tenants’ shares in the children’s property. The proceedings had a lengthy history during the course of which the claimant sought to argue that his share in one third of the income of the children’s property gave him the right to occupy a part of the land comprising the children’s property. Eventually, a limited restraint order was made forbidding the claimant from making any further application without first obtaining permission from Master Teverson. On 18 July 2013 the claimant applied for permission to make a further application but, by order dated 16 December 2013, Master Teverson refused except in relation to one point; namely a claim under the Trusts of Land and Appointment of Trustees Act 1996 (1996 Act) that the claimant be allowed to occupy one of several residences comprised in the children’s property. An application notice was issued on 11 August 2014 in effect requesting an order that the trustee defendants let the claimant into possession of one of those residences comprised in the children’s property. Section 12(1)(a) of the 1996 Act gave a beneficiary who was beneficially entitled to an interest in possession in land subject to a trust of land the right to occupy the land at any time if, at that time, the purposes of the trust included making the land available for his occupation (or for the occupation of beneficiaries of a class of which he was a member or of beneficiaries in general). This was subject to a proviso that a beneficiary did not have a right to occupy land if it was either unavailable or unsuitable for occupation by him. The claimant sought to argue that a power contained in the 1965 settlement, which had been carried over into the 1979 appointment, for the trustees to permit a beneficiary of the trust to reside in or occupy any land forming part of the trust property by itself made it one of the purposes of the trust to provide property for the occupation of a beneficiary.

Counsel details

The claimant appeared as litigant in person.

Mark West (Radcliffe Chambers, 11 New Square, Lincoln’s Inn, London WC2A 3QB, tel 020 7831 0081, e-mail clerks@radcliffechambers.com) for the defendants.

Cases referenced

Cases in bold have further reading - click to view.

  • Chan v Leung [2002] EWCA Civ 1075
  • F Long v Farrer & Co [2004] EWHC 1774 (ChD)
  • Inland Revenue Commissioners v Eversden [2002] WTLR 1013

Legislation referenced

Legislation in bold has further reading - click to view.

  • Trusts of Land and Appointment of Trustees Act 1996, ss12-15