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Home > Judgments > 2009 archive

C v C & Ors [2009] EWHC 1491 (Fam)

Judgment in ancillary relief proceedings to determine whether an interest in a trust fund was a “financial resource” that could be included in the settlement.

The fund was valued at between £4m and £6.2m (which would be split four ways) but the key point is that the trustees did not have any power to pay anything to benefit the husband in this case without the consent of the widow (ie the husband’s mother): the widow had an unfettered discretion to grant or withhold consent. As a result the hearing focused on when and in what circumstances may he be able to obtain some value from the trust fund in the future.

Munby J therefore has to consider the life expectancy of the widow and the possibilities of a sale of any of the trusts assets. He concludes that the widow is likely to live for another 15 years (she would be 89) and that there was a possibility that some property would be sold to fund her care. On that basis he concluded that the fund was a resource though at the “outer extremity of what can properly be considered” and he did so “without much enthusiasm”. He also emphasised

"that whether any, and if so what, order is made in relation to the husband’s interest under the trust is a matter for the judge hearing the substantive application"

_________

Neutral Citation Number: [2009] EWHC 1491 (Fam)
Case No: FD09D01273
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25 June 2009

Before :

MR JUSTICE MUNBY
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Between :

C (Petitioner)

 - and - 

C Respondent

 - and - 

(1) VJW, (2) DJH, (3) STEPHEN HOWARD WOOLFE, (4) PHILIP JAMES TOSTEVIN  (Interveners)

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Miss Kate Mather (instructed by Langleys) for the Petitioner (wife)
Mr Timothy Clark (instructed by Woolley & Co) for the Respondent (husband)
Mr Stephen Woolfe (of Harvey Ingram LLP) for the Third and Fourth Interveners
The First Intervener (the husband’s sister) appeared in person
The Second Intervener (the wife’s step-mother) was neither present nor represented

Hearing date: 12 June 2009
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Judgment
 
Mr Justice Munby :  
1. These are ancillary relief proceedings. The single largest relevant asset is a trust fund in which the husband has an interest. One of the questions which arises is whether, and if so to what extent, the husband’s interest under the trust is, within the meaning of section 25(2)(a) of the Matrimonial Causes Act 1973, a “financial resource” which he “has or is likely to have in the foreseeable future.”

2. The issue having arisen, the District Judge in the County Court where the litigation was proceeding transferred the case to the High Court on 20 January 2009 – a step which he appropriately took in the light of Baron J’s observations in Re C (Divorce: Financial Relief) [2007] EWHC 1911 (Fam), [2008] 1 FLR 625, at para [17].

3. By an order dated 31 March 2009, Roderic Wood J directed that the matter be adjourned for a contested hearing before a judge of the Division in respect of whether the husband’s interest under the trust is a resource of the husband’s for the purposes of section 25(2)(a). The order also invited the trustees to “intervene and attend” and gave them permission to file a statement. The trustees – who are Mr Stephen Howard Woolfe, senior partner of Harvey Ingram LLP, solicitors, and Mr Philip James Tostevin, senior partner of Hardcastle Burton, chartered accountants, both appointed as trustees on 21 May 2008 – have responded promptly and helpfully, as one would have expected, They have submitted a written statement dated 13 May 2009, to which I must refer in due course. And Mr Woolfe attended court, both to give oral evidence if that was desired – as it was – and, generally, to assist, constructively and frankly, in any way he could.

4. I am grateful – as I hope everyone else is – for the assistance we have received from the trustees. They have behaved in all respects as trustees should in assisting the court. And Mr Woolfe (I have not seen Mr Tostevin, which is why I say nothing about him) is a solicitor with, as he told me, well over thirty years of experience of dealing with trusts who, if he will allow me to say it, is not merely highly experienced in such matters but is also, as shone though his evidence, scrupulous, sensible, sensitive and pragmatic but appropriately cautious in exercising his responsibilities as a trustee – responsibilities which he clearly understands very well and which he would, I am quite satisfied, always perform as conscientiously and impartially as he would carry them out skilfully.

5. The trust arises under the will dated 10 July 1973 of the husband’s late father, RBC, who died in February 1976 in a hunting accident. He was born in November 1912 and was thus 63 years old when he died. His widow – his second wife – was born in December 1934 and was thus much younger than him: she was only 41 when he died. She is still alive, now aged 74. The deceased had four children, two by his first wife and two by his second wife. All survived him and all are still alive. The husband (the Respondent) and the First Intervener are his children by his first marriage. The husband was born in June 1957 and was only 18 when his father died. He is now 52 years old, that is, 22 years younger than his step-mother.

6. The trust fund consists of (i) quoted securities worth £220,139 on 5 April 2009, (ii) chattels and (iii) a landed estate consisting of (a) the main S estate, including various buildings within the curtilage, (b) two cottages located at the entrance to the S estate, (c) another cottage and (d) a farm at D. Quite understandably in the circumstances, not all the land has been recently re-valued and the balance sheet values are not all up-to-date. It suffices for present purposes to indicate that the trust fund is currently worth in all – views differ – perhaps as much as (say) £6 million, though probably less, not least in the light of recent and current economic events. The wife puts its value at about £6.2 million, the husband at about £4 million. Whatever its value, either now or when the reversion falls in, it needs to be borne in mind that there is likely to be a 40% charge to Inheritance Tax on the widow’s death. 

7. The will was in a form conventional for its time. After the usual preliminaries, which I need not rehearse for they were in familiar form, the testator in clauses 9(v)-(vi) made the following provisions in relation to the trust fund:

“(v) My Trustees shall pay the income of the Trust Fund to my said wife during her life.
(vi) Subject thereto my Trustees shall stand possessed of the capital and future income of the Trust Fund  UPON TRUST for all or any my children or child who attain the age of Thirty years and if more than one as tenants in common in equal shares PROVIDED ALWAYS that if any child of mine shall have died in my lifetime leaving issue living at my death such issue attaining the age of Twenty one years shall take by substitution if more than one as tenants in common in equal shares the share in the Trust Fund which such deceased  child of mine would have taken under the trusts in that behalf hereinbefore declared had he or she survived me and attained a vested interest but so that no issue remoter than a child of such deceased child shall take except in the case of the death of his her or their parent before me and in the place of such parent.”

8. In clauses 10 and 12 the trustees were given conventional powers of investment and management, including power to invest, power to purchase a dwellinghouse for use as a residence and power to carry on the testator’s farming business.

9. Clause 13 was in the following terms:

“Notwithstanding anything to the contrary herein contained or implied my Trustees (other than my said wife if she is for the time being a Trustee hereof and not being less than two in number exclusive of my said wife if she is such trustee) may at any time or times at their uncontrolled discretion raise and pay the whole or any part or parts of the capital of the Trust Fund  to my said wife for her own use and free from any trust or apply the same for or towards her support or otherwise for her benefit in such manner as they think fit AND I DECLARE that in deciding whether or not to exercise this present power my Trustees shall be entitled to regard only the well being of my said wife and to disregard the interests of all other persons interested in the Trust Fund PROVIDED ALWAYS that my Trustees may with consent in writing of my said wife release the whole or any part or parts of the Trust Fund from the future exercise of this present power.”

10. Upon the true construction of the will and in the events which have happened there is and can be no doubt as to the beneficial interests. Each of the testator’s children, as I have said, survived him, so the substitutional provisions set out in the proviso to clause 9(vi) did not and cannot now take effect. The children have all attained the relevant age of thirty years, so they all have vested interests under clause 9(vi). And since they hold as tenants in common, not as joint tenants, there is no survivorship.

11. In short, the trust fund is held upon trust for the testator’s widow for life and on her death for the four children as tenants in common in equal shares.

12. If any of the children die during the widow’s lifetime then they do not lose their interest under clause 9(vi), nor does that interest pass by substitution to their children; it merely falls into their estate, to be dealt with (as the case may be) upon their intestacy or in accordance with their will. But their interests are, of course, all at risk of being reduced, potentially to nothing, by an exercise or by repeated exercises by the trustees of their power under clause 13 – not that this power has in fact yet been exercised. 

13. It is important – for present purposes vital – to note that the trustees are given by the expressed terms of the will no power either to vary the beneficial interests of any of the beneficiaries or to pay, apply or appoint anything to or for the benefit of any of the children. So far as concerns the beneficial interests under the trust, the only powers the trustees have are:

i) the power conferred on them by clause 13 of the will, to pay the whole or any part of the trust fund to the widow; and
ii) the power of advancement conferred on them by section 32 of the Trustee Act 1925; but as Mr Woolfe correctly pointed out, proviso (c) to section 32, prevents any exercise of this power in favour of any of the children unless the widow consents in writing to it.

14. In addition, the trusts are necessarily, in accordance with the rule in Saunders v Vautier (1841) 4 Beav 115, Cr & Ph 240, amenable to variation if, but only if, all the beneficiaries agree unanimously: see Berry v Geen [1938] AC 575. This, as we will see, has happened once in the recent past and once in the more distant past.

15. I should add that although the powers vested in the trustees are plainly fiduciary powers which have to be exercised in a fiduciary manner, the ability of the widow to give or withhold her consent, whether it be to a proposed exercise by the trustees of their powers under section 32 or to a proposed Saunders v Vautier transaction, is not a fiduciary power and need not be exercised in a fiduciary manner. Her discretion is unfettered and uncontrolled. Put bluntly, the widow is entitled to give or withhold her consent whether (so far as concerns the children) her reasons are good, bad or indifferent and even if they are (or appear to them to be) based upon whim or prejudice, like or dislike.

16. In other words, one has to bear in mind the distinction correctly drawn by the Deputy Judge in TL v ML and others (Ancillary Relief: Claim against Assets of Extended Family) [2005] EWHC 2860 (Fam), [2006] 1 FLR 1263, at para [88], between “the very different nature of, on the one hand, the relationship between a fiduciary and his beneficiary; and, on the other, that of mere donor and donee” – the widow, as tenant for life, standing here, vis-à-vis the children, as remaindermen, in the position of a mere donor. As the Deputy Judge said at para [86]:

“I think that a clear distinction is to be drawn between, on the one hand, the position where the person … is a member of the payer’s family and, on the other hand, where he is a trustee in a fiduciary relationship with the payer. In the former case the payer has no more than a mere spes of bounty which may, at the election of the provider, reasonably or unreasonably, be withheld. In the latter case the provider has a legal obligation to consider the beneficiary’s interests.”

17. He continued at para [88]:

“If the court makes a reasonable request of trustees to make funds available to meet an ancillary relief award then it can assume that ordinarily the trustees will accede to such a request. The same cannot be assumed of a request of a mere donor, for it is his prerogative to be unreasonable, if that is his inclination.”

(I need not take up time here considering whether the sentiment expressed in the first sentence may not, perhaps, be unduly sanguine: cf A v A [2007] EWHC 99 (Fam), [2007] 2 FLR 467, at para [97]. It is the second sentence which correctly resonates here.)

18. The Deputy Judge elaborated the point at para [101]:

“The correct view must be this. If the court is satisfied on the balance of probabilities that an outsider will provide money to meet an award that a party cannot meet from his absolute property then the court can, if it is fair to do so, make an award on that footing. But if it is clear that the outsider, being a person who has only historically supplied bounty, will not, reasonably or unreasonably, come to the aid of the payer then there is precious little the court can do about it.”

He added at para [104]:

“[The family] can stipulate the assistance they offer, and the terms on which it is to be provided. It is up to them. Whether or not I think it is reasonable is fundamentally irrelevant.”

I respectfully agree.

19. In short – and this is the key point for present purposes – the trustees do not have any power on their own to pay, apply or appoint even a farthing to or for the benefit of the husband (or, indeed, any of his siblings) except with the written consent of the widow – a consent which may be given or withheld at her unfettered and uncontrolled discretion. And the husband and the court have to take the widow as they find her. As against the widow there can be no question of exerting any “judicious encouragement” (see Thomas v Thomas [1995] 2 FLR 668 at page 670), as there might be if what was in issue was the exercise by the trustees of their powers if they had any that were relevant. But, as we have seen, they do not. 

20. It will be appreciated, therefore, that this case is very different from what one might think of as the normal Thomas v Thomas case, for here the trusts are not discretionary and, to put the same point slightly differently, the trustees do not themselves have any power to benefit the husband: see, in addition to Thomas v Thomas itself, TL v ML and others (Ancillary Relief: Claim against Assets of Extended Family) [2005] EWHC 2860 (Fam), [2006] 1 FLR 1263, Charman v Charman [2005] EWCA Civ 1606, [2006] 2 FLR 422, A v A [2007] EWHC 99 (Fam), [2007] 2 FLR 467, and Charman v Charman (No 4) [2007] EWCA Civ 503, [2007] 1 FLR 1246, to which I was referred.

21. Now in one sense the husband’s interest under the trust is, indeed, a “resource” which he “has”. He has, as I have explained, a vested interest – a one-quarter share in the reversion upon his mother’s death. And, but for the provisions of clause 13 of the will, it would, in principle, be very easy to value that interest in the usual way, applying ordinary actuarial principles in relation to the value of the trust fund and the life tenant’s expectation of life and, having done so, it would, in principle, be easy to sell his interest on the open market – where there is traditionally a ready demand for reversions.

22. But one cannot, of course, ignore clause 13 because, as I have already commented, it is possible that the husband’s interest under the trusts will be wholly exhausted by an exercise or by repeated exercises by the trustees of their power under clause 13. I am prepared to assume that the existence of this clause does not make the husband’s reversion unsaleable – there tend to be people who are prepared to speculate and take chances, even where there is a chance that they will receive nothing for their investment – but I very much doubt that the husband could realistically hope to receive more than a small fraction of his presumptive inheritance on the market.

23. Moreover, there is always the chance that the widow might tomorrow drop dead or be run over by the proverbial bus. But that is unlikely: the life tables set out in At a Glance 2008-2009 (Table 19, page 24) show that the life expectancy of a 74-year old woman is 15 years.

24. So, in my judgment, it cannot be said that the husband’s interest under the trust, insofar as it is a “resource” which he “has”, has any significant realisable value at all at present (apart that is, obviously, from the sum which he will shortly be receiving in the circumstances described in paragraph [34] below). And that is why the focus of the argument before me has been as to when, and in what circumstances, the husband might hope to be able to obtain some, and what, value from the trust fund in future – whether, in other words, it can sensibly be said, within the meaning of section 25(2)(a), that his interest in the trust fund, even if it is not, in any real economic sense, a resource which he “has” is, nonetheless, a resource which he is “likely to have in the foreseeable future.”

25. That is the statutory test, not surprisingly reflected in Wilson LJ’s formulation in Charman v Charman [2005] EWCA Civ 1606, [2006] 2 FLR 422, at paras [12]-[13], of the test to be applied in Thomas v Thomas cases:

“[12]  … But what does the word ‘resource’ mean in this context? In my view, when properly focused, that central question is simply whether, if the husband were to request it to advance the whole (or part) of the capital of the trust to him, the trustee would be likely to do so …

[13]  …In principle … in the light of s 25(2)(a) of the 1973 Act, the question is surely whether the trustee would be likely to advance the capital immediately or in the foreseeable future.”

26. The argument on this issue has focussed on three factual matters.

27. The first matter relates to the widow’s life expectancy. Put in plain terms: when is the widow likely to die; when might the husband expect to receive his quarter-share of the reversion? As I have already said, the life tables show that the widow’s life expectancy is 15 years. Is there any basis for taking a markedly different view because of anything in her particular circumstances?

28. There was some suggestion from the wife that the widow was not in the best of health, but that was not the view of either the husband or, more significantly, of Mr Woolfe. In a letter dated 21 August 2008, he said that the widow, whom he referred to as having been born in December 1934, “appears to me to be in very good health.” In his oral evidence he said that he had seen her only two or three weeks ago. He said she was not ‘some little old lady’; she was “a very active 74-year old”. And he described how she had a race-horse which she followed round to meetings at various courses. The picture he painted was clear enough. I am also told that the widow comes from a long-lived family, her own mother having survived into her 90s.

29. There is, in my judgment, nothing tangible to indicate that the widow will not live for approximately as long as the life tables would suggest. Nor in this context should one overlook the comment of Nourse LJ in Michael v Michael [1986] 2 FLR 389 at page 397 that “The world is full of women in their eighties who had high blood pressure in their sixties” – and that from a judge with unrivalled experience of the application of actuarial principles to forensic disputes about trusts.

30. It is unthinkable that the widow should be requested, let alone required, to submit to a medical examination. So I must do the best I can on the basis of the available evidence – both counsel disavowed any suggestion that this is an issue which should be the subject of any further evidence either now or at trial.

31. In my judgment the widow will live for approximately as long as the life tables would suggest – some 15 years give or take.

32. The second matter relates to the prospects of there being further agreed partitions of the trust fund – Saunders v Vautier arrangements – in future. The historical facts are not in dispute. There have been two such transactions.

33. The first was in about 1998 or 1999, when the widow received £14,000 and the four children each received £10,000.

34. The second was in 2008 when it was agreed by a memorandum of agreement dated 14 October 2008 that a property known as H should be sold, the net proceeds being divided as to one-sixth each to the widow and each of the four children, the remaining one-sixth share being retained by the trustees as part of the trust fund. Most of H has already been sold, and the proceeds of sale divided, each one-sixth share amounting to £91,867.58. The remaining part of H is in the process of being sold, each one sixth-share being estimated to amount to some £64,000. That sum, as I have already remarked, is of course a “resource” of the husband. But that is not the issue before me.

35. The question whether there might be further partitions has been canvassed with the trustees. The relevant material is clear and can be summarised shortly:

i) On 21 August 2008. Mr Woolfe in the course of a long letter dealing with the trust said that, apart from the transaction in relation to H, “there is no suggestion that [the widow] is prepared to release or partition her share in the Trust in any way … I know of no reason why [she] should agree to release her life interest or seek a partition in respect of any other part of the Trust property.”
ii) On 15 October 2008 Mr Woolfe wrote another letter in which he said that “On behalf of the Trustees … we confirm that following disposal of [H] it is not anticipated that any further funds will be distributed from the Trust to the residuary beneficiaries … during the lifetime of [the widow].”
iii) On 16 December 2008 Mr Woolfe wrote a letter in which he said that the widow’s “intention” was to remain at S “which has been her home for a very long time.”
iv) On 19 March 2009 Mr Woolfe wrote again. Having referred to the sale of H he continued: “There has not been any suggestion from any other member of the family that [the widow] should give up her life interest in respect of any other part of the Trust Fund. Indeed she needs the income from the Trust Fund to maintain her standard of living … We must make it clear that the trustees have no power whatever to accede to such a request” – to make an advance from the Trust Fund to the husband – “as long as [the widow’s] life interest is subsisting.”
v) In their statement to the court dated 13 May 2009 Mr Woolfe and Mr Tostevin repeat that: “We are not aware of any other proposals for any further partition of the Will Trusts. It is our understanding that [the widow] needs the income from the Will Trusts to maintain her standard of living”. vi) In his oral evidence Mr Woolfe accepted that a further partition was a possibility, in the sense that it could not be ruled out, but emphasised that it would require the consent of the widow. He said nothing to suggest that such consent would be forthcoming. I understood Mr Woolfe’s use of the word “possible” here as meaning literally that, and nothing more. As the late Walton J was fond of observing, ‘anything is possible’, but that is not really the point.

36. The trustees’ position is, as Mr Clark submits, clear and unequivocal.

37. In my judgment, and having regard to the weight of all this evidence, the possibility of there being some further Saunders v Vautier arrangement in the future is entirely speculative. It is, in my judgment, the kind of “vague contingency” (see Davies v Davies [1986] 1 FLR 497 at pages 501-502) which is simply outside the ambit of section 25(2)(a). As Nourse LJ put it in Michael v Michael [1986] 2 FLR 389 at page 396 (see further below at paragraph [57]), where there are “uncertainties both as to the fact of [receipt] and as to the time at which it will occur” that will normally make it impossible to hold that the property is property which is likely to be had in the foreseeable future.

38. The third matter relates to the prospects of the trustees exercising their power under clause 13 of the will – something which, as I have already remarked, they have never yet done.

39. The matter was referred to by Mr Woolfe in his letter dated 13 March 2009 when, having observed, as we have seen, that the widow “needs the income from the Trust Fund to maintain her standard of living”, he continued “Further it may well be that the trustees would need to exercise their powers to advance capital to [the widow] if need arises which would ultimately reduce the value of the reversionary interests.” The same point was repeated by Mr Woolfe and Mr Tostevin in their statement of 13 May 2009. Having indicated their understanding that the widow “needs the income from the Will Trusts to maintain her standard of living”, they continued “it may well be that in future the trustees will need to exercise their powers to advance capital to [the widow] if the need arises which would ultimately reduce the value of the reversionary interests.”

40. Mr Woolfe elaborated this in his oral evidence. He accepted that the time might come when it would be appropriate to exercise the power in order to meet the increased costs of caring for the widow. If the “need” arose the trustees would be “likely” to do so; as he put it, they would be “reasonably clear in wishing to do that.” He made the point that a provision such as clause 13 “starts to tilt the balance away from equality between life tenant and reversioner to a slight preference to the life tenant.” But he explained that were the trustees to consider whether or not to exercise their power they would need to consider whether it would be reasonable to do so having regard to the widow’s own non-trust assets and resources.

41. The topic was also touched upon, rather more obliquely, by Mr Woolfe in his letter of 16 December 2008 when he said that “If [the widow] requires nursing care then the cost will have to be met primarily from her own estate – the cost of that care is not capital expenditure which the Trustees are required to cover.” This letter was not before me during the hearing but was sent to me subsequently by the wife’s solicitors under cover of a letter dated 18 June 2009 in which it was suggested that this was “very much against” what Mr Woolfe had told me in his oral evidence. I do not agree. The letter was clear, accurate and quite consistent with Mr Woolfe’s oral evidence. As the letter spelt out, the trustees are not “required” to cover such costs out of capital, though that is not to dispute that they have power to do so under clause 13. And Mr Woolfe was clear in his oral evidence, as we have seen, that the trustees would indeed have to have regard to the widow’s own resources before deciding to exercise their power in her favour.  

42. In this connection it also has to be borne in mind that the trustees’ land agent advised in 2006 that the sale of any part(s) of the S estate would detract from the value of the whole. Accordingly, the view of the trustees is that it would not be sensible to dispose of any parts of the S estate – a point reiterated by Mr Woolfe in his oral evidence. Thus, if it became necessary to sell any of the trust properties in order to fund the widow’s ongoing care – if ‘push came to shove’ – the trustees would first sell D and then the cottages. The trustees would not contemplate selling S, where the widow has lived for many, many years, indeed since before the testator’s death, unless perhaps a time came when the need for permanent residential care meant that she could no longer live there.

43. In my judgment there is a distinct possibility – a possibility verging on a probability – that in due course the trustees will indeed exercise their power under clause 13, and perhaps more than once. But it is, I think, unlikely (unless, that is, the widow were to end up requiring very expensive care for a protracted period) that any exercise of the clause 13 power would involve a realisation of any part of the S estate. This is, of course, very much in the realm of speculation, but I suspect that recourse to D and the three cottages would probably suffice to raise the necessary funds.

44. I can therefore summarise my factual conclusions in the light of all the evidence as follows:

i) The widow will live for approximately as long as the life tables would suggest – some 15 years give or take.
ii) The possibility of there being some further Saunders v Vautier arrangement in the future is entirely speculative, no more than a “vague contingency”.
iii) There is a distinct possibility – a possibility verging on a probability – that in due course the trustees will exercise their power under clause 13, though it is unlikely that this would involve a realisation of any part of the S estate.

45. In other words, the husband can anticipate that in about 15 years time, give or take, he will inherit his one-quarter share of the trust fund, probably depleted as a result of exercise(s) by the trustees of their power under clause 13 but not to such an extent as to encroach upon the S estate. His inheritance will probably be subject to Inheritance Tax at 40%. The possibility of him receiving anything more before his mother’s death is entirely speculative.

46. It is accordingly against this factual background that I approach the question of whether the husband’s interest under the trust (save insofar as he has already received distributions or is on the point of receiving a further distribution on the sale of H) is, within the meaning of section 25(2)(a) of the Matrimonial Causes Act 1973, a “financial resource” which he “has or is likely to have in the foreseeable future.”

47. I was referred to a number of cases, in particular to the decision of Bracewell J in MT v MT (Financial Provision: Lump Sum) [1992] 1 FLR 362, which contains a careful analysis of (seemingly) all the preceding authorities, and the decision of Connell J in D v D (Lump Sum: Adjournment of Application) [2001] 1 FLR 633. I need not repeat the exercise undertaken by Bracewell J. Instead I focus on those points which are of particular significance for present purposes.

48. If the court is satisfied that there is, within the meaning of section 25(2)(a), some “financial resource” which, although not presently available for distribution, is “likely” to become available “in the foreseeable future” to one of the spouses in circumstances where it might be right to direct that some part of it should be paid to the other spouse, the court has a choice: it may either adjourn the application or it may make an immediate order, for example by directing that the applicant spouse be paid some specified share of the property if and when it comes into the hands of the respondent spouse: see Michael v Michael [1986] 2 FLR 389 at page 392. Which course is appropriate will depend upon the circumstances of the particular case, being ultimately a matter for judicial discretion: Davies v Davies [1986] 1 FLR 497 at page 503 and D v D (Lump Sum: Adjournment of Application) [2001] 1 FLR 633 at pages 635-636.

49. Adjournments were directed in Morris v Morris (1977) 7 Fam Law 244, Davies v Davies [1986] 1 FLR 497, MT v MT (Financial Provision: Lump Sum) [1992] 1 FLR 362 and D v D (Lump Sum: Adjournment of Application) [2001] 1 FLR 633. Immediate orders, albeit to come into effect on the happening of some future event, were made in Priest v Priest (1980) 1 FLR 189 and Milne v Milne (1981) 2 FLR 286.

50. A number of cases consider the circumstances in which it is appropriate to order an adjournment. One of the principles to emerge from these cases is that an adjournment should be directed only if the property in question is likely to become available “in the near future” or “within the next few years”: Davies v Davies [1986] 1 FLR 497 at page 501, MT v MT (Financial Provision: Lump Sum) [1992] 1 FLR 362 at pages 367, 368, and D v D (Lump Sum: Adjournment of Application) [2001] 1 FLR 633 at page 635.

51. In the nature of things one cannot define with any precision the maximum period which is likely to be appropriate for such an adjournment. The matter, after all, is always one for the exercise of judicial discretion in the circumstances of the particular case. But there are helpful indications in the authorities.

52. In both Morris v Morris [1977] 7 Fam Law 244 and Davies v Davies [1986] 1 FLR 497, the Court of Appeal ordered an adjournment. In each case the relevant property was likely to become available within quite a short time – in Morris v Morris within 2 or 3 years, in Davies v Davies “fairly soon.” In MT v MT (Financial Provision: Lump Sum) [1992] 1 FLR 362 Bracewell J directed an adjournment (see at pages 364, 368) to await the death of an 83 year old man with a history of ill health who was likely to die in the next few years. In D v D (Lump Sum: Adjournment of Application) [2001] 1 FLR 633 Connell J dismissed an appeal against a District Judge’s adjournment (see at pages 634, 636) where there was a real possibility that the relevant asset would become available within some 2 years.

53. These cases can be contrasted with Milne v Milne (1981) 2 FLR 286, where the relevant asset was a pension payable in about 10 years time. The Court of Appeal declined to order an adjournment, on the basis that it would not be right to leave the parties in a state of uncertainty for such a long time. Instead, it made an immediate order that the husband pay the wife (if then still alive) one half of the lump sum pension payment when received by him: see the discussion by Purchas J at pages 288-289.

54. In Roberts v Roberts [1986] 2 FLR 152 at page 156, Wood J, having carefully analysed Morris v Morris [1977] 7 Fam Law 244, Davies v Davies [1986] 1 FLR 497 and Milne v Milne [1981] 2 FLR 286, suggested, obiter, that the longest period should be no longer than some 4 to 5 years. (I cannot, with all respect to Bracewell J accept her observation in MT v MT (Financial Provision: Lump Sum) [1992] 1 FLR 362 at page 368 that Wood J’s obiter dictum was not in fact consistent with Milne v Milne. Quite the contrary in my judgment.) In Ranson v Ranson [1988] 1 FLR 292 at page 296, May LJ said that an anticipated period of 7 years was “far too long” – an observation made in the context of an analysis of Wood J’s approach in Roberts v Roberts which he evidently approved.

55. Mr Clark sought to persuade me of an equivalence between the maximum period for which it might be appropriate to contemplate adjourning such a case and the maximum period of what, more generally, might be considered the “foreseeable future”. I do not accept the proposition. It is not consistent with the approach adopted by the Court of Appeal in Milne v Milne (1981) 2 FLR 286 where, as we have seen, it was accepted that the pension would be available within the foreseeable future (for otherwise the court could not have made the order it did) albeit further away in the future than it would have been appropriate to adjourn the case for. And in Michael v Michael [1986] 2 FLR 389 at page 397 Nourse LJ said “I do not think that the foreseeable future is necessarily the same thing as the near future.”

56. How far away into the future, then, is the “foreseeable future”?

57. In Michael v Michael [1986] 2 FLR 389 at page 397 Nourse LJ said “I appreciate that in some of the cases the foreseeable future has been held to extend for a good number of years. In Milne v Milne (1981) 2 FLR 286, for example, it was 10 or 11.” He added, “If, as in Milne v Milne, it can be foreseen that the interest will vest on a certain future date, albeit a somewhat remote one, I can understand that the court might think that it will vest in the foreseeable future.” As against that, in Priest v Priest (1980) 1 FLR 189 at page 192, Cumming-Bruce LJ said “I feel that a financial resource by way of a gratuity which is likely to vest in 1993 is only dimly in the foreseeable future in 1978.” And in Michael v Michael [1986] 2 FLR 389, where the court was concerned with a mere spes successionis under the will of a living testator, the claim failed altogether. As Nourse LJ said at page 396, “the occasions on which such an interest will fall within section 25(2)(a) … are likely to be rare. In the normal case uncertainties both as to the fact of inheritance and as to the time at which it will occur will make it impossible to hold that the property is property which is likely to be had in the foreseeable future.” Referring to the facts of the case he added at page 397 that “it cannot be foreseen that the wife will inherit the property within 5, 10 or even 20 years.”

58. Ms Mather on behalf of the wife submits that the husband’s interest under the trust is a resource for the purposes of section 25(2)(a). It is, she says, a definite interest which will be a future source of income for him; and she relies upon the fact that he has already benefited from the trust in the ways I have described. She says that I could, if appropriate, adjourn the application as in MT v MT (Financial Provision: Lump Sum) [1992] 1 FLR 362.

59. Mr Clark on behalf of the husband disputes both propositions.

60. I can deal first and briefly with the issue of a possible adjournment. It is, in my judgment, quite out of the question. Given my findings in relation to the widow’s expectation of life and what, as I have said, is the entirely speculative possibility of some further Saunders v Vautier arrangement in the future, it is quite clear that the time which is likely to elapse before the husband derives any further benefit under the trust once he has received the second tranche of the monies arising under the sale of H, is very considerably in excess of any period which could possibly justify an adjournment. The proceeds of sale of H apart, he is not looking to receive any further part of his interest under the trust in the near future. On the contrary it is likely to be something of the order of 15 years before he receives anything – a period significantly longer than the maximum suggested by Wood J and May LJ and significantly longer than the period which in Milne v Milne (1981) 2 FLR 286 was held to be too long for the court to be contemplating an adjournment.

61. The real question, as it seems to me, is whether this is a case in which, in principle, and if satisfied that it was appropriate in all the circumstances to do so as a matter of discretion, the court could properly make an immediate order in favour of the wife, albeit to come into effect on the death of the widow, in other words an order of the kind (even if not in the same terms) as those that were made in Priest v Priest (1980) 1 FLR 189 and Milne v Milne (1981) 2 FLR 286.

62. As we have seen, in Michael v Michael [1986] 2 FLR 389 Nourse LJ distinguished between, on the one hand, a case where “the interest will vest on a certain future date, albeit a somewhat remote one” and, on the other hand, a case where there are “uncertainties both as to the fact of inheritance and as to the time at which it will occur.” The present case falls somewhere in between. There is here the certainty of the reversion falling in, and the probability, as I have found, that it will be of significant value to the husband; but there is not the same degree of certainty as to when that will be, or as to the amount of what will be left for the husband after any exercise(s) by the trustees of their power under clause 13, as there was, for example, in relation to both the date and the amount of the service gratuity or pension which was the subject-matter of the disputes in, respectively, Priest v Priest (1980) 1 FLR 189 and Milne v Milne (1981) 2 FLR 286.

63. I confess that on this crucial issue my mind has wavered. On any view, as it seems to me, this case is at or very close to the outer extremity of what can properly be considered a “financial resource” which a spouse is “likely to have in the foreseeable future.” At best it is, to adopt Cumming-Bruce LJ’s metaphor, only dimly visible. But on balance I have concluded that Ms Mather is correct in her contention that the husband’s interest under the trust is indeed such a resource. In other words, I am persuaded, though I have to say without much enthusiasm, that the question posed by the preliminary issue directed by Roderic Wood J is to be answered in the affirmative.

64. There are two features of the case in particular which persuade me to that conclusion:

i) The first is that the husband’s interest under the trust is vested and that although liable to be divested, in part or even in whole, in consequence of the trustees exercising their powers under clause 13, the likelihood is that the husband will, nonetheless, still ultimately receive a significant part of the trust fund.
ii) The second is that although one cannot be certain as to when that will be – because one obviously cannot be certain as to when the widow will die – the likelihood is that the reversion will fall in in about 15 years give or take.

65. To put this in context, I should make it clear that my decision would in all probability have been different if either the chance of the husband actually receiving anything when the widow dies had been significantly less or the widow’s life expectancy had been significantly greater than I have found them to be.

66. I must emphasise that, consistently with the terms of the preliminary issue, all I have decided is that the husband’s interest in the trust fund is a “financial resource” which he is “likely to have in the foreseeable future.” I have not decided that it would be in fact be appropriate to make an order of the kind made in Priest v Priest (1980) 1 FLR 189 and Milne v Milne (1981) 2 FLR 286 or, indeed, appropriate to make any order at all in relation to his interest in the trust fund. All I have decided is that his interest in the trust fund is, within the meaning of section 25(2)(a), a “financial resource” which he is “likely to have in the foreseeable future,” and, accordingly, something which section 25(2) requires the judge at the final hearing to “have regard to.” Having had regard to it, the judge may decide to make some order in relation to the husband’s interest under the trust. On the other hand, the judge, having had regard to it, may decide not to make any order at all in relation to the husband’s interest under the trust. It is entirely a matter for the judge who is called upon, as I have not been, to exercise the discretion conferred by sections 24 and 25.

67. And even if the judge decides, having conducted the exercise mandated by section 25(1) – to have regard to all the circumstances of the case – and the exercise mandated by section 25(2) – to have regard in particular to the matters referred to in sections 25(2)(a)-(h) – that it is appropriate to make some order in relation to the husband’s interest under the trust, it should not be assumed that the order will be in the form of the orders made in Priest v Priest (1980) 1 FLR 189 and Milne v Milne (1981) 2 FLR 286, let alone that any order that might be made would be for a share of the husband’s interest under the trust fund as large as the shares, in the one case one-third and in the other case one-half, awarded in those two cases. Even if the judge decides to make an order in relation to the husband’s interest under the trust, it may be, for example, that the order will be for a comparatively modest amount; and it might be appropriate, for example, for the order to be for a fixed sum (possibly index-linked) rather than a percentage.

68. These are all, I emphasise, matters for the trial judge. I refer to them only to emphasise the limited ambit of this judgment and to make clear that whether any, and if so what, order is made in relation to the husband’s interest under the trust is a matter for the judge hearing the substantive application. What I have decided, and all I have decided, is that the husband’s interest under the trust is a resource to which the judge is entitled to, and accordingly must, “have regard” for the purposes of section 25.

69. The question has been raised as to whether or not I should direct a valuation of the trust assets. I decline to do.   

70. There is no question of the trustees agreeing to this expense, and there is absolutely no reason why they or, more particularly, their beneficiaries should be put to such expense for the purposes of a dispute which has nothing to do with them. So the no doubt significant costs of the exercise would fall on the husband and the wife, to swell the very substantial costs which have already been incurred in this litigation. Can such further expenditure be justified having regard to any assistance the court would derive from having a more precise valuation than I have been given? The answer in my judgment is quite plainly No!

71. What the judge at the final hearing will need to have regard to is not so much what the trust fund is worth today as what it might be worth in (say) 15 years when the widow dies. How is the judge going to be assisted by a more precise valuation than we already have, not least bearing in mind the current disturbed and depressed state of the market, when (a) that may be a very imperfect guide to what the trust fund might be worth in (say) 15 years and (b) there is every chance that the husband will, in consequence of the trustees exercising their powers under clause 13, ultimately inherit only part of his presumptive share. The reality is, unavoidably as it seems to me, that, peering as the judge inevitably must into a somewhat dim future, the task upon which he or she will be engaged will inevitably involve the use of a broad brush – a very broad brush. I am utterly unpersuaded that this no doubt difficult judicial task is going to be assisted by knowing whether the trust fund today is worth £4 million, £6.2 million or (as I suspect is the case) some other figure in between.

72. There is no need for this case to remain in the High Court. The parties agree that it should return to the County Court. A final hearing in the relevant County Court has in fact now been fixed for three days starting on 2 November 2009.

73. Nor, in my judgment, is there any need for the trustees to remain as interveners. The purpose of their joinder has been achieved. They have no further role to play as parties. Neither the trust fund nor the husband and wife should be exposed to any further burden of costs in relation to the trustees or the trust fund. I shall direct that the trustees forthwith cease to be interveners.

74. There is one final comment I feel I must make. In his skeleton argument Mr Clark observed that it was becoming increasingly apparent that unless resolved soon these proceedings would financially ruin the two principal parties. He observed that this was a case involving modest assets – it is, after all, I would emphasise, in the High Court only because of the trust issue – and remarked that what he called my “depressing commentary” in KSO v MJO and JMO (PSO Intervening) [2008] EWHC 3031 (Fam), [2009] 1 FLR 1036, threatened to find an echo in these proceedings. Given my limited involvement, I do not know how that state of affairs has come about, nor am I in any position to identify which of the parties bears the responsibility (perhaps both do) for this concerning state of affairs and for the fact that the proceedings have not yet been resolved through negotiation and agreement. But the parties really should, if they will permit me to say so, be bending all their energies now – not at the door of the court in November – to a determined attempt to reach a sensible compromise.

75. I invite Ms Mather and Mr Clark to agree the appropriate form of order (i) to give effect to this judgment and (ii) incorporating all appropriate directions for the final hearing. I am anxious to spare the parties, if at all possible, the need to spend time and money on further directions hearings if that can possibly be avoided.