In Re Jaundice
In the Court of Appeal
John Jaundice, who died in 2006, left his country house "Miserable Mansion" to his friend Esther on trust for his nephew Richard for life and his niece Ada in remainder. The trust contains the following two clauses, which are the subject of the present appeal:
Clause 1: "All of that land known as Miserable Mansion is to be retained in specie throughout the lifetimes of Richard and Esther, the trustees having no power to sell, lease, charge or otherwise alienate the said land so long as either Richard or Esther shall live".
Clause 2: "On Richard’s death all of that land known as Miserable Mansion shall pass to Ada absolutely provided she is not at that time an adherent of the Muslim faith and provided she is not married or engaged to be married to an adherent of the Muslim faith".
Richard died earlier this year in a car accident and his 14 year-old sister, Ada, has recently converted to Islam in a quest to make sense of her brother’s untimely death.
As a result of these events, Esther applied to court to have the trust varied to enable immediate sale of Miserable Mansion so as to finance Ada’s attendance at a private Islamic school in London. Esther argued that, despite Clause 1, the court had power to order a sale under section 14 of the Trusts of Land and Appointment of Trustees Act 1996. She also argued that the anti-Islamic provision in Clause 2 is discriminatory and should be struck out as infringing the Human Rights Act 1998. The court refused the variation on the basis that Clause 1 had, in accordance with section 8(1) of the 1996 Act, expressly removed the trustee’s sale "function", with the result that section 14 could not be relied upon to reinstate it. The court also refused to remove Clause 2, on the basis that John Jaundice had been exercising a private choice in the disposition of his property and "Discrimination is not the same thing as choice" (quoting Lord Wilberforce in Blathwayt v Cawley [1976] AC 397, House of Lords).
Esther now appeals to the Court of Appeal on the following two grounds:
1. The court has power under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 to authorise sale of land subject to a trust of land, even where the trustee’s power of sale has been expressly removed by a clause effective under s8(1) of the statute.
2. The court, as a public authority, is not permitted to uphold a discriminatory provision in a gift or trust, the otherwise "private" nature of the disposition notwithstanding.
© Gary Watt 2008
