When a number of parties choose to create multiple contracts across two generations, there will always be problems trying to control the flow of assets when the moment requires it.

In this matter, the sheer volume of trusts, contracts, covenants, wills and gifts left the trustees to one marriage agreement, confused as to exactly what they were under duty to do, and to whom any decided benefit belonged.

In 1887, a married couple entered into an agreement requiring that any property left by the husband upon death, was to be held in trust for their children, and would be thus managed by two appointed trustees.

The husband also contracted with his wife that any funds left for him in his father’s will, would then be held in the same trust and managed by the trustees.

In the terms of his father’s will, the husband was legally entitled to a one-third share of two large sums of money, which had been expressed by action of a family deed in 1849; while in a deed of gift in 1904, the husband then conferred that certain other properties would now be held upon trust for his wife’s enjoyment in a separate trust.

When his father died in 1891, the husband was duly paid his one-third share of the first of the two sums, although his wife and the trustees of the 1887 marriage contract had no knowledge of this, despite his prior acquiescence to the terms of his gift.

The husband later died in 1907, leaving them no children to benefit from the 1887 marriage trust; after which, the specific properties and his other one-third share of money came into his possession through the death of his mother in 1913.

These assets were subsequently held by the appointed trustees of his parents own 1889 agreement and the family deed created in 1849.

By this time, the residue of the 1887 marriage trust was now held in trust by the trustees, while the property and monies from his parents wills and 1849 deed, were now held on absolute trust, despite his passing.

At this point, the 1887 marriage agreement trustees sought to claim the property and monies held in absolute trust, in order that they now became part of the 1887 trust, while asking whether by virtue of the fact that no children were created during the lifetime of their marriage, the 1849 deed funds were now held upon trust for the benefit of the widow’s next of kin upon her death.

When considered by the court, the equitable maxim ‘equity will not assist a volunteer’ was put to good effect when explaining that despite any suggestion of default to the widow’s relatives, it did not fall to the judges, or the appointed trustees, to attempt enforcement of the 1887 agreement, when the widow was legally entitled to benefit from the funds and property now held upon trust by the parent’s trustees.

It was also noted that despite not having children of their own, no evidence of a declaration of trust could be manufactured between the respondent and her next of kin, so there could be no argument of a breach to the contrary, while the court reminded the parties that:

“[V]olunteers have no right whatever to obtain specific performance of a mere covenant which has remained as a covenant and has never been performed.”

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