Charles Antony Elliott Braithwaite & Anor v Sir Benjamin Slade, Bt & Anor [2026] EWHC 1181 (Ch)

[2026] EWHC 1181 (Ch)Case No PT-2025-000647IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESPROPERTY TRUSTS AND PROBATE LIST (ChD)Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 27/5/2026
Before
MASTER CLARK
Between
(1) CHARLES ANTONY ELLIOTT BRAITHWAITEClaimants(2) DENISE SKEFFINGTON, Dowager Viscountess Massereene and FerrardClaimantSIR BENJAMIN SLADE, BtDefendants
Hugh Cumber (instructed by Loxley Solicitors Limited) for ClaimantsRobert Deacon (instructed on Direct Access) for 1 st DefendantHearing Hearing date: 18 March 2026
Approved JudgmentThis judgment was handed down remotely at 10.00am on 27 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................Master Clark:
[1]This is my judgment on a preliminary issue as to the construction of a trust deed dated 13 May 1994 (“the Deed”).[2]The claimants, Anthony Braithwaite and Denise Skeffington, Dowager Viscountess Massereene and Ferrard (“the Trustees”) are and remain two of original trustees of the trust created by the Deed (“the Trust”)[3]The first defendant, Sir Benjamin Slade (“Sir Benjamin”), is the settlor, and remainderman of the Trust. He is also a trustee, appointed in November 1999 to replace a retiring trustee.[4]The second defendant, Lady Pauline Carol Slade (“Lady Slade”), is the ex-wife of Sir Benjamin, and the “Principal Beneficiary” under the terms of the Deed.[5]The Deed was entered into by Sir Benjamin as part of the financial arrangements consequent upon the dissolution of his marriage to Lady Slade. Both are now aged 79.[6]The Trust assets comprise:(1) The Old Farm, Lower Rydon, West Newton, Bridgewater, Somerset (“the Property”) – valued at £585,000 in July 2022;(2) a dividend income fund investment with Northern Trust - valued at about £556,000 in May 2025 (“the Cash Fund”).[7]The terms of the Deed so far as relevant are:
“WHEREAS : (1) The marriage between the Settlor and Lady Pauline Carol Slade (hereinafter called "the Principal Beneficiary") is in the process of dissolution pursuant to a decree of divorce nisi made in the Family Division of the High Court of Justice on the 21st of May 1991, and it is anticipated that the decree will be made absolute shortly after the making of this Settlement. (2) The Settlor has agreed to make this Settlement by way of provision for the Principal Beneficiary after the dissolution of their marriage. (3) The Settlor holds the freehold property described in the First Part of the Schedule hereto (hereinafter called "the Property”) upon trust to transfer the same to the Trustees to be held upon the trusts hereof, and intends forthwith upon the execution of these presents to pay or transfer to the Trustees the sums and other assets mentioned in the Second Part of the said Schedule to be held upon the trusts hereof. NOW THIS DEED WITNESSETH as follows:- 1. The Trustees shall hold the property, sums and other assets mentioned in the Schedule hereto and all other (if any) the money investments and property paid or transferred to and accepted by the Trustees to be held on the trusts hereof together with all accretions thereto respectively whether by way of accumulation or otherwise and the money investments and property from time to time respectively representing the same (hereinafter called "the Trust Fund") upon trust that they shall either permit any such property as shall not be received in money to remain as invested or shall at their absolute discretion (but subject nevertheless to the provisions hereinafter contained) sell call in or convert into money all or any part of such property and shall at the like discretion invest the money thereby arising and also any other capital money received by them in their names or under their control in any of the investments authorised by this Settlement or by law with power at the like discretion from time to time to vary or transpose any such investments into others so authorised. 2. The Trustees shall hold the income of the Trust Fund upon protective trusts as specified in section 33(1) of the Trustee Act 1925 for the benefit of the Principal Beneficiary during her life and subject thereto shall hold the capital and income of the Trust Fund upon trust for the Settlor or his estate absolutely. 3. Notwithstanding the provisions of clause 2 hereof:- (1) the Trustees shall have power at any time or times when the income of the Trust Fund is held upon the discretionary trusts mentioned in section 33(l)(ii) of the Trustee Act 1925 to appoint by deed that the income of the Trust Fund shall henceforward be held upon protective trusts as specified in section 33(1) of the Trustee Act 1925 for the benefit of the Principal Beneficiary during her life. (2) With the consent of the Settlor and after his death with the consent of his Personal Representatives the Trustees shall have power at any time or times to appoint by deed that the protective trusts (arising under either clause 2 or clause 3(1) hereof) shall forthwith be terminated with regard either to the whole or to any part of the income of the Trust Fund and that the income thereof shall thenceforward be paid to the Principal Beneficiary during her life. 4.(1) The Trustees shall permit the Principal Beneficiary to reside rent free in the Property for so long as she may desire, subject however to such terms (if any) as to the payment of Council tax or any tax replacing the same, insurance premiums and other outgoings and as to the maintenance and repair thereof as the Trustees may from time to time reasonably require. (2) The Trustees shall not sell the Property during the lifetime of the Principal Beneficiary without having first obtained the consent in writing of the Principal Beneficiary (or of any person appointed to manage her affairs if she shall have been found by any court or other authority of competent jurisdiction to be incapable of managing her affairs). (3) If the Principal Beneficiary (or any person appointed to manage her affairs if she shall have been found by any court or other authority of competent jurisdiction to be incapable of managing her affairs) shall so direct the Trustees in writing, then the Trustees shall sell the Property and shall apply the whole or any part as they may likewise be directed of the net proceeds of sale (together, if so directed, with such further sum as when taken with the said proceeds of sale amounts to not more than half of the then value of the Trust Fund) in the acquisition of such further freehold dwelling as they may likewise be directed, and the terms of this deed (including this sub-clause) shall thereafter apply to such further dwelling in substitution for the Property. 5. So far as is reasonably practicable the Trustees shall invest that part of the Trust Fund not represented by the Property (or any property substituted therefor under the terms 2 of clause 3 hereof) with a view to obtaining an annual gross income equal to not less than 7% of the value of the part of the Trust Fund so invested. 6. Subject to clauses 4 and 5 hereof any money for the time being subject to the trusts hereof may be applied or invested in the purchase of, or of any interest in, or at interest upon the security of, such stocks funds shares securities chattels or other investments or property of whatsoever nature and wheresoever situate whether within the United Kingdom or not (including the purchase of, or of an interest in, any land or buildings of any tenure or any chattels with a view to their occupation use or enjoyment in specie by any beneficiary pursuant to the powers hereinafter contained in that respect) and whether involving liability or not or upon such credit whether personal or otherwise and with or without security and in all cases whether producing income or capital growth or being calculated to carry other advantages as the Trustees shall in their absolute discretion think fit To the Intent that subject as aforesaid the Trustees shall have the same full and unrestricted power of investing and transposing investments in all respects as if the Trustees were a sole absolute owner beneficially entitled thereto. … NOW THIS DEED WITNESSETH as follows:- (1) the Trustees shall have power at any time or times when the income of the Trust Fund is held upon the discretionary trusts mentioned in section 33(l)(ii) of the Trustee Act 1925 to appoint by deed that the income of the Trust Fund shall henceforward be held upon protective trusts as specified in section 33(1) of the Trustee Act 1925 for the benefit of the Principal Beneficiary during her life. (2) With the consent of the Settlor and after his death with the consent of his Personal Representatives the Trustees shall have power at any time or times to appoint by deed that the protective trusts (arising under either clause 2 or clause 3(1) hereof) shall forthwith be terminated with regard either to the whole or to any part of the income of the Trust Fund and that the income thereof shall thenceforward be paid to the Principal Beneficiary during her life. (2) The Trustees shall not sell the Property during the lifetime of the Principal Beneficiary without having first obtained the consent in writing of the Principal Beneficiary (or of any person appointed to manage her affairs if she shall have been found by any court or other authority of competent jurisdiction to be incapable of managing her affairs). (3) If the Principal Beneficiary (or any person appointed to manage her affairs if she shall have been found by any court or other authority of competent jurisdiction to be incapable of managing her affairs) shall so direct the Trustees in writing, then the Trustees shall sell the Property and shall apply the whole or any part as they may likewise be directed of the net proceeds of sale (together, if so directed, with such further sum as when taken with the said proceeds of sale amounts to not more than half of the then value of the Trust Fund) in the acquisition of such further freehold dwelling as they may likewise be directed, and the terms of this deed (including this sub-clause) shall thereafter apply to such further dwelling in substitution for the Property. … THE SCHEDULE The First Part 8. The Old Farm, Lower Rydon, West Newton, Bridgewater, Somerset The Second Part 9. Three Hundred and Fifty Seven Thousand Pounds and One Hundred and Ten Pounds (£357,110)”
Background facts

The First Part

[8]For present purposes, the relevant background facts can be stated quite briefly.

The Second Part

[9]Lady Slade lived at the Property until about 2023, when she moved out and now lives in London. The Property remains unoccupied.[10]On 17 July 2024, the Trustees’ solicitors wrote to Sir Benjamin, setting out their intention to write to Lady Slade inviting her to elect between:
“(a) retaining the Old Farm in the Trust, in which case Lady Slade should resume paying the outgoings and should also clear the council tax arrears; or (b) selling the Old Farm and then, at Lady Slade’s further election: (i) using the proceeds to purchase an alternative property for Lady Slade to live in; or (ii) adding the proceeds to the Trust’s investment fund.” (i) using the proceeds to purchase an alternative property for Lady Slade to live in; or (ii) adding the proceeds to the Trust’s investment fund.”
[11]The Trustees’ solicitors’ letter to Lady Slade was not in evidence, but her reply on 2 August 2024 was:
“I have wanted to sell Lower Rydon for years. I have no intention of living at The Old Farm again and no wish to buy a further property. I give my full consent to the trustees to sell the house, land and outbuildings and for the money to be invested, to enhance my income, and all debts to be paid from the proceeds.”
[12]The Trustees considered (on their solicitors’ advice) that they were obliged to give effect to Lady Slade’s wishes. Sir Benjamin did not agree. The Trustees therefore issued this claim on 25 June 2025.[13]The first head of relief sought in the claim form is “1. that it may be determined whether, upon the true construction of the [Deed], a written direction made by the principal beneficiary, the Second Defendant, to sell the property known as the Old Farm, Lower Rydon registered under title no. ST91330 (the ‘Property’) held on the trusts of the [Deed], without a corresponding direction to purchase a replacement property:1.1 compels the trustees to sell the Property and invest the proceeds to produce an income for the Second Defendant; or1.2 does not so compel the trustees;1.3 how else the Property ought to be dealt with in the events that have happened.” 1.1 compels the trustees to sell the Property and invest the proceeds to produce an income for the Second Defendant; or 1.2 does not so compel the trustees; 1.3 how else the Property ought to be dealt with in the events that have happened.”[14]The Trustees are neutral in the claim and simply wish to ascertain the correct meaning of the Deed to allow the administration of the trust to continue.[15]Sir Benjamin’s position is that a direction to sell without a corresponding direction to buy a replacement property does not compel the Trustees to sell the Property and invest the proceeds for Lady Slade, and is of no effect.[16]Lady Slade filed an acknowledgment of service stating that she did not intend to defend the claim, and stating that she wished the Property to be sold. She has also written 2 letters to the court, dated 8 August 2025 and 12 February 2026, which confirm her position as set out in her letter to the Trustees referred to above.[17]On 4 November 2025 I made an order directing a hearing on a preliminary issue, namely the issue of construction raised in paragraph 1 of the claim form.[18]Lady Slade did not attend the hearing. In these circumstances, the Trustees helpfully put before the court the arguments that she could make in opposition to Sir Benjamin’s position.

Legal framework: construction of voluntary instruments

[19]The relevant principles are well established and common ground. A unilateral document such as a settlement is subject to the same principles of construction as apply to all written instruments: Millar v Millar [2018] EWHC 1926 (Ch) at [19]-[23]; applying Marley v Rawlings [2015] AC 129 in the context of a family settlement.[20]At [19] of Marley, Lord Neuberger said:
“… the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but, (b) ignoring subjective evidence of any party’s intentions.”
[21]The Court is concerned with the objective meaning of the words used in the relevant context. The inadmissibility of subjective evidence of the settlor’s intentions (Lord Neuberger’s point (b)) is well established: see Lewin on Trusts (20th ed) at 7-004 – 7-018. Thus, the extent of the Court’s factual enquiry is to the surrounding circumstances disregarding any evidence relating to Sir Benjamin’s subjective intentions.

Discussion

[22]The starting point is the natural and ordinary meaning of clause 4(3) itself. Sir Benjamin submitted that it provided for conjoined (and inseparable) obligations on the part of the Trustees: to sell the Property and to apply the proceeds (or part of them) to buy a replacement property. Thus, he submitted, clause 4 gives Lady Slade a limited power of direction i.e. only for a sale in order to enable the purchase of a replacement property. The Deed did not, he submitted, authorise converting the Property into a general investment fund for income.[23]He submitted that Clause 4 of the Deed gives Lady Slade the following:(1) a right to reside rent-free in the Property for as long as she wishes and(2) the benefit of a direction in the trust deed that the trustees must not sell the Property during her lifetime, unless she directs them in writing to do so. However, he submitted, Lady Slade’s entitlement is either to live in the property, or to direct the trustees to sell it and buy another property subject to the same occupation rights.[24]The Trustees submitted that clause 4(3) has a disjunctive structure i.e. the directions to sell and the directions to purchase a replacement are to be treated as being capable of being separately made. The clause, they submitted, expressly contemplates that they only “may” be directed to purchase a replacement property (“may likewise be directed”). This disjunctive structure does not expressly require Lady Slade to give a direction to purchase a replacement property when exercising her power to compel a sale. The question therefore is whether as a matter of construction such a requirement may be implied.[25]This ambiguity gives rise to the construction issue defined for this hearing i.e. whether a corresponding direction to buy a replacement property is required for the direction to sell under the clause to operate.[26]In order to resolve this issue, one turns to the overall purpose of the Trust. Sir Benjamin submitted that the purposes of the Trust were limited to:(1) providing income for Lady Slade from the Cash Fund;(2) providing Lady Slade with lifetime rent free accommodation by means of the transfer of the Property into the Trust. It was, he submitted, never objectively intended that the Property would be used to provide income either for Lady Slade or at all – it is not an income producing asset.[27]I do not accept that submission. In my judgment, the overall purpose of the Trust is to be found in clause 2 (supplemented by clauses 5 and 6). It is to provide Lady Slade with income during her lifetime from the “Trust Fund”, and the Trust Fund includes the Property.[28]The “Trust Fund” is defined in clause 1 as the assets in the First Schedule i.e. the Property and the Cash Fund “together with all accretions thereto respectively whether by way of accumulation or otherwise and the money investments and property from time to time respectively representing the same”. This expression in my judgment contemplates that the Property may be sold and represented in the Trust Fund either by another, or money, or investments.[29]This intention is confirmed by the remainder of clause 1 which provides that the Trustees may either:(1) permit any property which is not money to remain as invested; or(2) at their absolute discretion (subject to the provisions in the remainder of the Deed) sell, call in, or convert into money that property; and(3) if they do so, at their like discretion invest the money arising from that sale or other realisation in any of the investments authorised by the Deed or by law (and to vary those investments into other authorised investments).[30]In my judgment, these provisions render the submission that the Trust’s purpose did not include providing income from the Property to Lady Slade unsustainable. As set out above, clause 2 provides for the income from the entirety of the Trust Fund, including the Property, to be held for Lady Slade.[31]I turn therefore to the other provisions in the Deed. Clause 4 sits within the framework of clauses 1, 2, 5 and 6, which give the Trustees very broad powers of sale and investment, and direct them to produce as much income as possible.[32]Clause 4 is primarily concerned with providing a secure place to live for Lady Slade. It protects her against the exercise of the Trustees’ broad powers which she could not otherwise direct or control. It gives her a right of occupation (cl.4(1)) and provides that the Property may not be sold without prior consent (cl.4(2)). This is the only limitation on the Trustees’ otherwise wide power to sell conferred by clause 1.[33]The clause does not require her to live in the Property and expressly contemplates (in cl.4(2)) that she may decide not to live there (“for so long as she may desire”). There is no express provision as to what should happen if she does not live there. There is nothing to suggest that beneficial interest ends in those circumstances. Indeed the overall purpose of the Trust requires that if she is not occupying the Property, it should be used as an income-producing asset, either by renting it or selling it and investing the net proceeds of sale.[34]Clause 4(3), the key provision, uses mandatory language (“shall sell”), so that if directed to sell, the Trustees have no discretion as to whether to do so. Similar mandatory language is used in respect of their obligation to apply the net proceeds of sale (“shall apply”), but this is qualified by “as they may likewise be directed”. It contemplates that Lady Slade may not direct the purchase of a replacement property.[35]Clause 4(3) and Clause 5 expressly contemplate a situation where only part of the sale proceeds are applied towards the purchase of a replacement property (“the whole or any part”).[36]Clause 5 expressly directs investment of “that part of the Trust Fund not represented by the Property”: it confirms Lady Slade’s beneficial interest in the portion of the Trust Fund which is not invested in a replacement property; and that she is entitled to the income from it.[37]In this context, in my judgment, clause 4(3) confers two separate powers on Lady Slade. The first is to direct a sale of the Property. The second power is to direct that the portion of the Trust Fund represented by the net proceeds of sale of the Property is used to buy a replacement property. If she does not exercise the second power, then the Trustees are required to invest the net proceeds of sale. There is in my judgment no basis for concluding that if Lady Slade does not direct the purchase of a replacement property that the overall purpose of the Trust comes to an end, or that Lady Slade’s interest in the net proceeds of sale ends and reverts to Sir Benjamin.[38]In any event, the Trustees do not in my judgment require a direction from Lady Slade to sell the Property in order to do so. They are entitled to exercise their general powers conferred by clause 1 of the Deed to sell it, if Lady Slade consents in writing as provided for in clause 4(1). That discretion would of course have to be properly exercised - in the particular circumstances of this case, it is difficult to envisage a factor which could properly be taken into account as militating against a sale. The Trustees would then under clause 5 be obliged to invest the net proceeds of sale, and to pay the income from that investment to Lady Slade.[39]I will hear counsel on the appropriate form of order to reflect my decision above.