(1) The court relied upon well-worn case law, namely the leading Court of Appeal case of Thomas v Thomas, which found that though it could not make orders directly against the trustees it would be possible to make orders against the beneficiary – in this case the husband, which would place “judicious encouragement” on the trustees to provide him with the funds he needs to meet his obligations under a court order.
(2) The history of capital distributions from the trust, or as in this case the lack of them, was key to informing the court whether it was appropriate to make orders that might require capital payments to be made. Ultimately a trustee is responsible for providing for not only the requirements of the beneficiary who is the subject of the proceedings, but also all the other beneficiaries of the trust. To order a significant capital payment out of the trust could prejudice other beneficiaries and the court has to take this into consideration.
Other features to consider as a trustee when the trust cannot meet an expectation or encouragement to provide funds to a beneficiary to meet their obligations are:
- If the trust is dynastic in nature i.e. a trust is set up to provide for future generations of beneficiaries and has provided for previous generations too.
- The history of capital distributions to any beneficiaries in the past.
- What the assets of the trust are and the level of liquidity and distribution of income has been or could be.
- Whether both parties are beneficiaries – this could be a nuptial settlement, in which case the court has the power to make orders directly against the trust.
(3) The fact that the trust was paying out large income payments (as opposed to capital distributions) to the husband meant that the capital awarded to the wife – a sum of £4.25m in addition to her retaining the family home – could be paid in instalments over five years.
In this case, having failed to engage with the court process, some might say that the husband got away lightly with no costs orders made against him though.
What it does show is the overwhelming motivation of the court to see justice being done, to ride over obstacles thrown in the way by difficult litigants, and ignore the noise to focus on the key legal issues to provide a fair outcome.
Julian Hawkhead is the senior partner at Stowe Family Law
