Jane Sharman Hilton & Anor v Stephen Howard Woolfe & Anor

A testamentary trust may be completely constituted when the will is admitted to probate, even though the trust assets have not yet been specifically assented. The trust may initially hold a chose in action: the right to require due administration of the deceased’s estate. A beneficiary’s interest in a specific asset remains distinct and normally requires assent, but assent to a beneficial interest may be implied from conduct. The question depends on the circumstances, including whether the asset was needed for estate liabilities and how the parties treated it. Trustees appointed under a valid deed of appointment remain trustees despite disagreement about their status. Summary judgment is inappropriate where the evidence raises serious, genuinely arguable issues requiring determination.

The claimants, beneficiaries and executors of an estate, sought the retirement of the defendants as trustees of a property trust, transfer of the property, and enforcement of an alleged unconditional undertaking to retire. The defendants contended that they were also the current trustees of a testamentary trust created by their predecessor under the deceased’s will, and sought directions on related issues, including the status of the trust, the assets subject to it, assent, tax liabilities and indemnities.

The claimants applied for summary judgment and strike out. The defendants applied for permission to pursue their counterclaim. The central issues determined at this stage were whether the testamentary trust had been constituted, whether the defendants were its trustees, and whether the deceased’s share in the property had been impliedly assented to the trust.

1. Application. The claimants’ application for summary judgment and strike out was dismissed. The alleged unconditional agreement and solicitors’ undertaking in the 14 December 2023 letter were misconceived. The letter proposed alternative arrangements and contemplated suitable indemnities. The defendants’ evidence raised serious issues with a real and more than fanciful prospect of success.
2. Constitution of the trust. A testamentary trust is completely constituted when the will is admitted to probate. On the grant of probate, the Rutland Trust acquired a valuable asset in the form of a chose in action: the right to require due administration of the estate. That right was transmissible and capable of being held by the trustees. The defendants were therefore validly appointed as trustees under the deed of appointment and were the current Rutland Trustees.
3. Nature of the beneficiary’s interest. A person entitled under an unadministered estate has no beneficial interest in any particular asset. The person instead has a chose in action enabling due administration to be required. The same analysis applied to the Rutland Trustees in their capacity as persons entitled under the will.
4. Assent. An assent of a legal interest must be in writing under section 36(4) of the Administration of Estates Act 1925. An assent of a beneficial interest has no prescribed form and may be implied from conduct. The transfer, declaration of trust, deed of appointment, Vicki’s uninterrupted rent-free occupation, and the claimants’ conduct established an implied assent of the deceased’s share in the property by 17 January 2008.
5. The court did not finally determine whether the Cash Sum had been impliedly assented to the Rutland Trust. Permission was given for the defendants to advance their counterclaim, with consequential directions and the parties’ indemnity discussions left for a later stage.

Not stated in the judgment.