Francis Andre Malcolm Cook & Anor v No Defendant

Introduction

1. On 1 July 2025, the claimants issued this claim under CPR Part 8, without naming a defendant. They are the executors of the will of Patricia Fassam, and they obtained a grant of probate on 25 October 2023. The deceased, who died a widow on 22 November 2022, had two children: (1) Mark, who predeceased her, unmarried and leaving no issue, and (2) Jason, who survived her but who also so far is unmarried and has no issue. He is now 55 years old.

2. The deceased settled various trusts during her life. The earliest of them, established on 1 October 1987, is the subject of this claim. It held a life assurance policy with Allied Dunbar, which was acquired by Zurich Assurance Ltd in 1988. Unfortunately, the trust instrument cannot be found. Zurich has paid the proceeds of the policy (£168,000) to the claimants, and they seek the directions of the court as to how to deal with them. The evidence

3. The evidence before the court is contained in two witness statements of the claimants (though that of the second claimant simply confirms the substance of that of the first claimant). I also have the benefit of an opinion from Robert Sheridan of counsel, who has a 10-year qualification for the purposes of CPR PD 64A, paragraph 1A.3(b).

4. The evidence establishes that the deceased settled further trusts of life assurance policies on 23 September 1992 and 9 June 2009. The trustees of the 1992 trust were the deceased, her late husband Christopher (who died in 2007), and her former financial adviser David Keyte. Mr Keyte was replaced by the first claimant in October 2022. After the deceased’s death, the first claimant was and remains the sole surviving trustee. The trust confers power to appoint amongst a class of family members, but in default of appointment the trust fund is held for the deceased’s two sons in equal half shares absolutely.

5. The trustees of the 2009 trust were the deceased and her two sons, though Mark retired as a trustee, and the first claimant was appointed, on 12 July 2022. Again, the trust confers power to appoint amongst a class of family members, and also any charity, but in default the trust fund is held for the deceased’s two sons in equal half shares absolutely. The claim

6. The problem for the claimants is that they do not know who were the original trustees of the first trust, nor what its terms were. As to the trustees, the obvious candidates are the deceased and her late husband, but perhaps also a financial adviser (as with the second trust). Jason was then just 17 and so would not have been appointed. Mark could have been so appointed, and indeed he was a trustee of the third trust, though not of the second.

7. As to the terms of the first trust, it seems likely that the deceased wished to provide for her family, and in particular her children, just as she did in the others. This was the first such trust, and her children would be younger and in greater need of provision, than at the time of the later trusts. But that does not exclude the possibility of some benefit for others, such as charity. Given that both parents, and one of the sons, have died, and that Jason, the remaining son, is so far unmarried and without issue, the claimants would like to pay the entire proceeds of the policy to Jason. However, for reasons explained in the evidence, they have not consulted him about this.

8. The claim form accordingly asks for “ … the directions of the court as to whether … they may distribute the entire trust fund to Jason. [ … ]

4. The claimants have not named a defendant and seek to have the court determine this matter pursuant to CPR 8.2A and CPR PD 64A, paragraph 1A.

5. The claimants rely on … the advice of counsel having a 10-year High Court qualification … on the merits of the claim.” Claims with no defendant

9. Issuing a claim without joining a defendant is permissible for certain Part 8 claims, by virtue of CPR rule 8.2A, which relevantly reads: “(1) A practice direction may set out circumstances in which a claim form may be issued under this Part without naming a defendant. (2) The practice direction may set out those cases in which an application for permission must be made by application notice before the claim form is issued.”

10. Although there is no general practice direction made under rule 8.2A (see Barking and Dagenham LBC v Persons Unknown [2022] EWCA Civ 13 , [11]), practice directions 64A and 64B both contain specialist trust and estate provisions referring to that rule, and are accordingly to that extent practice directions under the rule, as Morgan J pointed out in Re Conwy Marina Village Management Company Ltd [2021] EWHC 1275 (Ch) , [29].

11. PD 64A relevantly provides: “1. The following are examples of the types of claims which may be made under rule 64.2(a) – (1) a claim for the determination of any of the following questions – (a) any question as to who is included in any class of persons having – [ … ] (iii) a beneficial interest under a trust; (b) any question as to the rights or interests of any person claiming – [ … ] (iii) to be beneficially entitled under a trust. (2) a claim for any of the following remedies: [ … ] (b) an order approving any sale, purchase, compromise or other transaction by a trustee (whether administrative or dispositive); [ … ] 1A.1 Where a claim is made by a trustee for a remedy within paragraph 1(2)(b) … the court may be requested to determine the claim without a hearing. 1A.2 The claim form in such a case may be issued in accordance with rule 8.2A … and no separate application for permission under rule 8.2A need be made. [ … ]

5. A Part 8 claim form for an application by trustees under section 48 of the Administration of Estates Act 1985 (power of High Court to authorise action to be taken in reliance on legal opinion) may be issued without naming a defendant, under rule 8.2A. No separate application for permission under rule 8.2A need be made.”

12. It will be seen from the provisions of rule 8.2A and paragraphs 1A.2 and 5 of PD 64A that claims brought under those two paragraphs can be issued without naming a defendant, and that no application for permission to do so need be made. The claim as set out in the claim form says it is one made under paragraph 1A, but also says that the claimants rely on the opinion of counsel. Yet counsel’s opinion is relevant to a claim under paragraph 5, rather than to one under paragraph 1A. But, since there is no need for permission in either case, nothing turns on this. Substantive law

13. I can now consider the relevant substantive law. It is clear that, when there is sufficient secondary evidence of what the terms of a lost trust instrument were, the court can direct that the trust fund be held on the terms thus proved. In Hansell v Spink [1943] Ch 396 , an assurance policy on the life of a husband was held on certain trusts. When the husband died in 1880, his widow and infant son sued to have the trusts executed, and the assurance company paid the policy proceeds into court.

14. When the widow died in 1942, the son sought payment of the fund still then in court out to him, claiming to be solely entitled under the trusts. However, by then the trust deed could not be located. All that could be found was a note made by the chief clerk of the court in 1880, summarising the terms of the trust. It was clear that the trust deed had been lodged in court. If accurate, this note showed that the son was indeed solely entitled.

15. Morton J made the order sought. He said (at 399-400): “The applicant bases his claim for payment out on the contention that the full note which the chief clerk made on the occasion in question can be relied on as being, in the proved circumstances of the case, sufficient secondary evidence of the material trusts of the lost settlement. There is no question as to the admissibility of secondary evidence, the substantial question being always as to the weight of such evidence when tendered. There is no doubt, here, that the original settlement was actually produced to the chief clerk, and that his note was made with the settlement before him. I am prepared to accept the terms of the settlement as being in the form outlined in the chief clerk's note. Does that, however, necessarily entitle me to accede to the application? In this respect I am fortified by the decision of Uthwatt J. earlier in the year in Perch v. Robertson . That was a case where a settlement and all papers relating thereto had been destroyed by enemy action, the only known factor being the existence of a tenant for life to whom the dividends of the investments constituting the settlement funds had always been paid. There was, however, no certainty as to the trusts of the settlement beyond a recital of its contents contained in a will which the tenant for life had made ten years previously, the settlement on that occasion having been seen by the solicitors who prepared the will. The tenant for life issued a summons asking for a declaration that the investments were held upon the trusts set out in the summons which corresponded to those recited in the will. The learned judge declined to make an order in this form as it would have had the effect of binding all persons interested and so have prejudiced the interests of possible beneficiaries who were not before the court, but (being satisfied as to the facts) made an order that the trustees were to be at liberty, until further order, to hold the said investments on the footing that they were subject to the trusts set out in a schedule to the order, being the trusts specified in the summons as amended by the directions of the judge. This was really applying the well-known principle established by In re Benjamin , where the court, without making any positive order declaring rights, protects personal representatives or trustees by giving them liberty to distribute on a particular footing based on probable inferences. With a fund in court, there is no room for the application of the principle of permissive distribution. The court must take the responsibility of deciding whether to make or to refuse an order for payment out. Here, the court, the custodian of the fund, is asked to make an order for payment of the fund to the applicant out and out. That is going far beyond the principle in In re Benjamin , but the evidence in this case is stronger than that in Perch v. Robertson . The fund has become distributable by reason of the death of the tenant for life, and as I am satisfied that the applicant has established his title to the relief asked, I see no reason why, on principle or authority, he is not entitled to an order for payment out, which, accordingly, I make.”

16. That was a case where the fund was in court, and the applicant sought its payment out to him as the person absolutely entitled. The court could not order payment out of court unless positively satisfied of his entitlement. The secondary evidence of the trust’s terms contained in the chief clerk’s note was sufficient for the purpose. However, the present case is not the same. First of all, the trust funds are not in court, but in the hands of the deceased’s personal representatives. So, it is not the court’s decision, but theirs. Secondly, here there is no direct evidence of the terms of the trusts affecting the policy. All we have is circumstance.

17. This case is therefore one of ignorance of essential details affecting the trusts. If the court cannot have its ignorance dispelled, it should not make an order which would have the effect of shutting out a claim by a third party who thereafter finds sufficient evidence to make a claim to the fund or to some part of it. On the other hand, that does not mean that the court is unable to assist those holding the trust assets and not knowing what to do with them.

18. One way of providing assistance is to order the payment of the funds into court, thereby discharging the fund holders: see the Trustee Act 1925 , s 63 , and CPR PD 37, paragraph 6. Yet that would not assist Jason, the surviving member of the family. The funds would simply sit in court until an application were successfully made for their payment out.

19. Another way of assisting is for the court to order that the trustees be at liberty to apply the funds on a certain assumed footing. This is usually known as a Benjamin order, from Re Benjamin [1902] 1 Ch 723 . There the court directed the application of gifts by will on the footing that a certain beneficiary, who had gone abroad and not been heard of since, had predeceased the testator.

20. Such an order protects the personal representatives or trustees from personal liability for misapplication of estate or trust funds, but does not take away or cancel the rights of any beneficiary who can thereafter prove entitlement. In effect it transfers the risk arising from payment from the personal representatives or trustees to the recipient of the estate or trust funds, who can make his or her own decision as to what to do.

21. Indeed, that was what the court did in the case of Perch v Robertson (1943) 87 Sol Jo 66, 195 LT Jo 72, referred to by Morton J in Hansell v Spink . In Perch v Robertson , a marriage settlement had been executed in 1891. However, the trust deed and other papers were destroyed by enemy action in 1941. The sole surviving trustee was unable to recall the terms of the trust beyond the existence of a tenant for life receiving the income.

22. The only evidence as to what would happen in remainder consisted of a recital in the tenant for life’s will, which had been professionally prepared. The trustee wished to retire, but his proposed successor would not accept the trusteeship until the trusts were known. This summons was accordingly taken out. Only the tenant for life (plaintiff) and the trustee (defendant) were parties to the proceedings.

23. Uthwatt J declined to direct that the trustees should hold the trust fund on the trusts so indicated. However, he did make a form of Benjamin order, by directing that the trustees were to be at liberty to administer the trusts on the basis of that recital. That would protect the trustees from personal liability, but would not prejudice the interests of any third party not before the court who thereafter was able to prove an entitlement. Similar relief was granted by Danckwerts J in Re Knapp’s Settlement [1952] 1 All ER 458n . Application to this case

24. In the present case, all I have to go on is the history and basic facts of this family (of which Jason is the only survivor), combined with the terms of the second and third life assurance trusts. Whilst I consider that I may properly infer that the first trust was, like the others, intended principally to benefit the members of the family, I do not think that that is enough for me to hold positively that the only person entitled in the events which have happened is Jason. But the claim in fact does not ask me to go so far.

25. On the other hand, I do think that it is sufficient for me to be able to order (as requested) that the claimants be at liberty to pay the policy proceeds to Jason on the footing (which may turn out to be wrong) that he is the sole remaining beneficiary. This will be a form of Benjamin order, relieving the claimants of liability for misapplication, but not destroying the interest of any third party that there may be. In practice, if the claimants, despite their best efforts from their stronger institutional position, have been unable to establish the lost terms of the trust, it is unlikely that anyone else will be able to do so. But that will be the (modest) risk that Jason takes. Conclusion

26. Accordingly I shall make an order that the claimants be at liberty to pay the policy proceeds to Jason, on the assumption for this purpose that he is the sole remaining beneficiary. The claimants will be protected against any claim by a third party based on a claim that they have misapplied the funds in question. But any such claim against Jason (albeit unlikely) will not be barred by my decision, and, if it ever arises, will have to be resolved in accordance with the relevant law.

27. As to costs, it is not necessary for me to order that the claimants should be entitled to the costs of these proceedings out of the deceased’s estate. This is because they are parties to these proceedings in their capacity as the deceased’s personal representatives, seeking the court’s blessing for the distribution of assets which they wish to make. Under the general law, such personal representatives are generally entitled to an indemnity out of the estate, without the need for any order: see CPR rule 46.3, PD 46 paragraph 1.