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ANCILLARY RELIEF: C v C (Ancillary Relief: Trust Fund) [2009] EWHC 1491 (Fam)

Date:25 JUN 2009

(Family Division; Munby J; 25 June 2009)

The husband had an interest in a trust fund worth between £4 million and £6 million. The money had been left in trust by the husband's father to his widow, the husband's stepmother, for life, and on her death to four children, including the husband, as tenants in common in equal shares. The trustees were to pay the income to the widow during her lifetime and had power to advance capital to the widow as they saw fit, regarding only her well being and disregarding the interests of other beneficiaries. The trustees did not have any power to advance money to the reversionary beneficiaries without the express consent of the widow. The issue for the court was whether, and if so to what extent, the husband's interest under the trust was a ' financial resource' that he 'has or is likely to have in the foreseeable future', within Matrimonial Causes Act 1973, s 25(2)(a).

In this case the trusts were not discretionary, and the trustees did not themselves have any power to benefit the husband without the written consent of the widow, whose consent could be given or withheld at her unfettered and uncontrolled discretion. Although the husband's one-quarter share in the reversion on the widow's death was a vested interest, it was possible that his interest under the trusts might be wholly exhausted by the trustees making advances to the widow. At present therefore it could not be said that the husband's interest under the trust had any significant realisable value. Nonetheless, it was a resource that he was 'likely to have in the foreseeable future' within s 25(2)(a) of the 1973 Act. It was a resource because the husband could anticipate that in about 15 years time he would inherit a one-quarter share of the trust fund, subject to tax; the fund would be then probably be a little depleted, but not to such an extent as to encroach upon the main estate. It was likely to be available 'in the foreseeable future' because the husband's interest was vested, and the likelihood was that he would ultimately receive a significant part of the trust fund in about 15 years. The decision would in all probability have been different if either the chance of the husband actually receiving anything when the widow died had been significantly lower, or the widow's life expectancy had been significantly greater. The court had a choice as to whether to adjourn the application, or make an immediate order, having regard to the husband's resource. There was no 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'. An adjournment was quite out of the question, as the time likely to elapse before the husband derived any further benefit under the trust was very considerably in excess of any period that could possibly justify an adjournment. There was no need to order a valuation of the trust assets, the cost of which would inevitably fall on the husband and wife: the judge at the final hearing would need to have regard to what the trust fund would be worth in 15 years time, not what it was worth now. It should not be assumed that any order made would be in the form of the orders made in Priest v Priest (1980) 1 FLR 189 and Milne v Milne (1981) 2 FLR 286. The case should return to the county court, and the trustees should forthwith cease to be interveners.