Hudson v St John
| Jurisdiction | Scotland |
| Judgment Date | 25 March 1977 |
| Docket Number | No. 22. |
| Date | 25 March 1977 |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Maxwell.
Trust—Creation of irrevocable discretionary trust—Omissions in trust deed—Mistake in class of intended beneficiaries—Failure by agents to include truster's issue and their spouses as he intended and as was understood by his prospective trustees—Circumstances in which court has power to correct mistake with retrospective effect—Nature of legal remedy available.
A truster set up an irrevocable discretionary trust intending to benefit a large class of beneficiaries, including primarily his own issue and their spouses. The prospective trustees were aware of the truster's intention before the deed was executed. The deed adopted the expedient of listing the class in a schedule to the deed as a class of "potential beneficiaries" rather than in the body of the deed. The solicitors who framed the deed mistakenly omitted to include the truster's issue and their spouses in the list. The truster raised an action concluding for simultaneous reduction of the existing settlement and declarator of the true settlement. The trustees appeared as contradictors and argued that the only remedy open to the truster was reduction simpliciter.
Held by Lord Maxwell (Ordinary) that (1) on the facts in the instant case the law would recognise that in principle the correction sought ought to be made and that with retrospective effect; and (2) the appropriate remedy was reduction combined with a declarator; declarator and partial reduction granted.
Authorities on rectification of errors in written deedsreviewed.
Alan Edmund Wilchen Hudson brought an action for declarator of the true terms of a trust settlement made by him and for reduction of the existing settlement. The relevant clauses in the settlement are quoted in the opinion of the Lord Ordinary. The trustees appeared as defenders. The original conclusions were as follows:—(First) For Declarator that the trust purposes of the Trust purportedly constituted by a Settlement in Trust by the Pursuer dated 31st March, 1st, 3rd and 5th April and registered in the Books of Council and Session on 2nd May, all in the year 1969 are and always have been as set out in said Settlement in Trust with the addition in the List of Potential Beneficiaries contained in the Schedule thereto of the words "My children, Lindsay Alan Erlund Hudson, Edmund Peder Norman Hudson and Catrina Vanessa Hudson and any other children born to me after 31st March 1969 and the wife or husband or...
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Mohammed Ameed Mirza Against Mrs Fozia Aslam Or Salim And Messrs Mellicks, Solicitors
...right. The statute implemented the recommendations of the Scottish Law Commission (made following upon the case of Hudson v St John 1977 SC 255). Rectification was expressly made retroactive: section 8(4) and (5). But it was recognised that an absolute rule about retroactivity could bring i......
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Marley v Rawlings (No 2)
...why the remedy of partial reduction and declarator should not be available to cure defective expression in a will. In Hudson v St John 1977 SC 255 Lord Maxwell used the remedy to correct errors in an irrevocable inter vivos deed of trust. A trust of that nature may have attributes similar t......
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Macdonald Estates Plc V. Regenesis (2005) Dunferline Limited
...to rectify defectively expressed documents, were commented on by Lord Maxwell in the later case of Hudson v Hudson's Trustees 1978 S.L.T. 88. The following year the Scottish Law Commission issued their Memorandum. Following consultation, they issued their Report. It appears from the Memoran......
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Marley v Rawlings and another
...in principle why the remedy of partial reduction and declarator should not be available to cure defective expression in a will. In Hudson v St John 1977 SC 255 Lord Maxwell used the remedy to correct errors in an irrevocable inter vivos deed of trust. A trust of that nature may have attrib......