Equiom v Velarde [2022] EWHC 11

05 Jan 2022

Rodney Stewart Smith successfully appeared in Equiom v Velarde [2022] EWHC 11.

The decision of Deputy Judge Ashley Greenbank in Equiom v Velarde [2022] EWHC 11. upholding the decision of Deputy Master Martin Dray [2021] EWHC 1528 (Ch,) raises an interesting question on the exercise of a power of appointment which is the subject of little reported authority.

Under a settlement made in 1974 by her father Mrs Moores, the life tenant, had a power of appointment in a conventional form exercisable in favour of her children by deed, revocable or irrevocable, or by will.  In 1981 she exercised that power by deed revocably in favour of her three children, Christian, Rebecca and Matthew.  In 1997 by a further deed she revoked the 1981 deed and exercised the power, again revocably, in favour of Christian and Rebecca only.

In 2007 Mrs Moores made her last Will.  Clause 7 was in these terms: “I LEAVE DEVISE BEQUEATH AND APPOINT the whole of my real estate and the rest residue and remainder of my personal estate wheresoever situate and of whatsoever kind or to which I shall be seised possessed or entitled at the date of my death or over which I shall have any power of testamentary disposition whatsoever…..unto my children PETER CHRISTIAN VELARDE MATTHEW JULIAN VELARDE and REBECCCA VELARDE” (emphasis supplied). Mrs Moores died in 2017. The issue was whether the effect of the clause was that Mrs Moores had revoked the 1997 appointment and made a fresh appointment which included Mathew as a beneficiary.

It was agreed that Mrs Moores had no other power of appointment and that at date of the Will she was aware of the power and the previous appointments.  It was also effectively conceded on the appeal that in the absence of the 1997 appointment the language of clause 7 would have shown an intention to make an appointment under the Settlement.  However, it was incumbent on Matthew also to show that Mrs Moores intended to revoke the 1997 appointment since in the absence of such revocation she had no power to make a fresh appointment.  It was common ground that an express revocation of a previous appointment is not required.  Matthew contended that an intention to revoke the 1997 appointment should be implied whereas Christian contended that the language of clause 7 was too general for that purpose.

The Deputy Master held that clause 7 did impliedly revoke the 1997 appointment and that consequently a valid new appointment to all three children had been made.  The principal basis for his decision was that, as Mrs Moores had no other power of appointment, the use of the word “appoint” and the other emphasised wording would have been of no effect whatever if it did not effect a new appointment.  Since the making of a new appointment required the revocation of the 1997 appointment it was a necessary implication that Mrs Moores intended that also.  The Deputy Master stated the general proposition that in a “one power case”, i.e. a case where the appointor has no other power of appointment, words showing an intention to make an appointment will also suffice to revoke a previous appointment.   In reaching this conclusion the Deputy Master applied certain dicta of Turner L.J. in Pomfret v Perring (1854) 5 De G.M & G.775 and derived strong support from the decision of Sargant J. in In re Barker’s Settlement [1920] 1 Ch. 527. 

The Deputy Judge held that the general proposition stated by the Deputy Master was wider than could be deduced from the authorities but he nevertheless upheld the decision on the ground that clause 7 of Mrs Moores’s Will construed in its context did show an intention to revoke the 1997 appointment.

 

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Rodney Stewart Smith

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Trusts, Wills & Estates