Frank Savage v Raymond Savage

Under section 15(3) of the Trusts of Land and Appointment of Trustees Act 1996, a dispute requires the court to have regard to the circumstances and wishes of the majority beneficiaries by value. It does not prevent the court from considering the circumstances and wishes of minority beneficiaries.

Section 15 provides a non-exhaustive list of matters to which the court must have regard. It does not fetter the broad discretion conferred by section 14. The court may weigh all relevant factors as it thinks fit.

Land held on trusts for Raymond Savage and the children of his late brother included land on which Frank Savage operated a campsite business. In financial remedy proceedings between Raymond and his former wife, the beneficiaries disagreed about the method of sale.

The District Judge ordered that Frank could acquire Raymond’s interest before an open-market sale. He considered the wishes of both Raymond, the majority beneficiary by value, and the minority beneficiaries. HHJ Farquhar reversed that order, holding that section 15(3) of the Trusts of Land and Appointment of Trustees Act 1996 barred consideration of minority wishes where there was a dispute.

Frank’s second appeal raised whether section 15(3) imposes that exclusion.

1. Appeal allowed unanimously. The judge had erred in construing section 15(3) of the Trusts of Land and Appointment of Trustees Act 1996. The District Judge’s order was restored.
2. Section 14 confers a broad discretion to make orders concerning a trust of land as the court thinks fit. Section 15 identifies matters to which the court is obliged to have regard, but its use of “include” and “have regard” does not make its lists exhaustive or require the court to give any listed matter priority.
3. Where there is a dispute, section 15(3) obliges the court to consider the circumstances and wishes of the majority beneficiaries by value. It relieves the court of any corresponding obligation to consider minority wishes. It does not expressly or necessarily exclude minority wishes from the matters which the court may consider in exercising its discretion.
4. The contrary construction would produce an irrational result where two equal beneficiaries disagreed: the court would be required to disregard both parties’ wishes. The court endorsed the reasoning in White v White [2003] EWCA Civ 924, which confirmed that section 15 does not exhaust the circumstances a judge may consider.
5. The judge’s reliance on expressio unius was misplaced. The maxim supports only the conclusion that minority wishes are not mandatory considerations in a dispute; it cannot convert section 15 into an exhaustive code. The District Judge had considered all relevant circumstances and had made a sensible order within the proper ambit of his section 14 discretion.

• Court of Appeal (Civil Division): Allowed Frank Savage’s second appeal and restored the District Judge’s order granting him a right to acquire Raymond Savage’s interest before an open-market sale.
• Family Court at Sussex, Brighton (HHJ Farquhar): Set aside the District Judge’s order and directed an open-market sale, holding that section 15(3) of the Trusts of Land and Appointment of Trustees Act 1996 prevented consideration of minority beneficiaries’ circumstances and wishes.
• Family Court at Sussex, Brighton (District Judge Owen): Ordered a right of pre-emption in Frank Savage’s favour after considering the circumstances and wishes of both the majority and minority beneficiaries.