City analysis: trusts

Pitt v Holt and Futter v Futter

These keenly awaited appeals will be the first review by the Supreme Court of the controversial Rule in Hastings Bass which, for 35 years, has been used to avoid dispositions of trust property where the trustee failed to take material considerations into account. The March 2011 CoA ruling went in favour of HMRC, replacing the rule with a narrower and stricter formulation. 

The Supreme Court will also review and clarify the test for setting aside voluntary transactions on the grounds of mistake.

The appeals will have significant implications for the ability of trustees to set aside transactions with unforeseen and adverse, usually tax, consequences.

This is the most important trust case to come before the Supreme Court for many years and raises fundamental questions as to the court’s supervisory jurisdiction over trusts. The court has recognised its significance by convening a panel of seven judges. It will be the last case heard by Lord Walker – doyen of trust lawyers – before his retirement at age 75.

For the appellant Pitt: Wilberforce Chambers’ Christopher Nugee QC leading Serle Court’s Will Henderson, instructed by Bolitho Way partner David Grinstead

For the appellant Futter: Wilberforce Chambers’ Robert Ham QC leading 3 Stone Buildings’ Richard Wilson and Jennifer Seaman, instructed by Withers partner Paul Hewitt

For the respondent HMRC: Serle Court’s Philip Jones QC leading Ruth Jordan of the same set, instructed directly

When? 12-14 March

Judges: Lord Neuberger; Lord Walker; Lady Hale; Lord Mance; Lord Clarke; Lord Carnwath