242 / 822
GAZETTE
JANUARY/FEBRUARY 1988
remainders over. It was held that
the " d i spos i t i on" " u n d e r" which
B became entitled on A 's death
was not the original settlement but
the resettlement.
To answer (B) is less difficult.
Once the " d i spos i t i on" " u n d e r"
(or " i n consequence o f " ) wh i ch
the property became subject to the
trust has been identified, the
" d i s p o n e r" in relation to that
" d i spos i t i on" is usually not hard to
find.
In Example (1), for instance, the
" d i spos i t i on" " u n d e r" wh i ch the
property became subject to the
trust was undeniably the trust in-
strument itself, in relation to which
A and not B was the " d i s pone r ".
In Example (2) the " d i spos i t i on"
" u n d e r " wh i ch the property (the
policy) became subject to the trust
was the assignment. The person
who " p r ov i ded" the policy " f or the
purposes" of this assignment was
H and not C.
In Example (3), on the other
hand, the " d i spos i t i on" " u n d e r"
w h i c h t he p r ope r ty (i.e. t he
£ 3 0 , 0 00 settled on discretionary
trusts for the benefit of Mrs. D and
her children) became subject to the
trust was the deed of family
arrangement. One could argue, as
the court in fact decided, that the
tons et origo
of the trust property
was Mrs. D's claim and it was
therefore she and not A who " p r o-
v i ded" the property " f o r the pur-
poses o f " the disposition. On the
other hand one could argue equal-
ly well, on the authority of
A. G-v-
Biggs
[ 1907] 2 IR 400, that B "pro-
v i ded" the property, whatever his
motives may have been for enter-
ing into the deed, or even that A
" p r o v i d e d" the property as the in-
testate out of whose estate the
settlement was made.
In Example (4) the " d i s pone r"
could be B or A, depending on
w h e t h e r
t he
" d i s p o s i t i o n"
" u n d e r " wh i ch the property (the
100 shares of £1 in the company
hiring out A ' s services to the film
studio) was the trust instrument
itself or the " a r r angemen t" of
wh i ch the trust was a constituent
part.
In
A. G -v- F/oyer
9 HLC 477 Lord
Cranworth suggested (489) that
w h e n
a s c e r t a i n i ng
t he
" p r edecesso r" for the purposes of
the former succession duty one
should inquire " w h o is the convey-
ing party out of whose estate the
interest in question has been deriv-
ed?" It is submitted that this test
is as good as any when determin-
ing who " p r o v i d e d" the property
" f o r t he pu r po s es o f " t he
" d i spos i t i on ".
More than one "d i sponer"
S.2(1) CATA 1976 provides that
" wh e re more than one person pro-
vided the property each shall be
deemed to be a disponer to the ex-
tent that he so provided the proper-
t y " . This corresponds to s. 13 SDA
1853 in the former succession du-
ty legislation, except that the
disponers are treated as being such
to the extent that each provides
the property comprised in the joint
disposition instead of " i n equal pro-
po r t i ons ".
The combined effect of s. 106(1)
FA 1984, s. 103(1) FA 1986 and
the definition of " d i s pone r" in
S.2(1) CATA 1976 wou ld thus
appear to be such that the dis-
cretionary trust in question is
notionally divided into t wo or more
trusts, the property subject to each
having a different " d i s pone r ". It is
difficult to see how effect can be
given otherwise to the words refer-
red to above in the definition of
" d i s pone r" in s.2(1) CATA 1976.
Example (7)
Property is held upon trust for A,
contingently on his surviving to a
specified date, and if he does not
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survive until that date, upon trust
for B. A and B jointly settle the pro-
perty upon discretionary trusts. A
and B are both " d i spone r s" in rela-
tion to the property subject to the
discretionary trust, proportionate-
ly to the values of their respective
interests under the original settle-
ment, calculated on an actuarial
basis:
in re Drake's
Settlement
Trusts
[ 1938] Ch. 133.
"Proper t y"
"Pr ope r t y ", as used in the CATA
1976, is defined in s.2(1) CATA
1976 to " i n c l u d e" " r i g h t s" and
" i n t e r e s t s" " o f any description"
but is otherwise undefined. Use of
the wo rd " i n c l ude s" in the defini-
tion suggests that its purpose is to
expand the meaning of the wo rd
beyond its " n a t u r al i mp o r t ":
Di/worth -v-CofS[
1889] AC 99,
105 per Lord Watson. The "natural
i mpo r t" of the wo rd " p r o p e r t y" is
" t h a t wh i ch belongs to a person
exclusive of others and wh i ch can
be the subject of a bargain and sale
to ano t he r ":
Potter -v- IRC
10 Ex.
147, 156 per Pollock CB.
As used in s. 106(1) FA 1984
and s. 103(1) FA 1986 the wo rd
" p r o p e r t y" is subject to a further
restriction in t hat neither (a)
"interests in expec t anc y" nor (b)
"interests in a policy of assurance
upon human l i f e" are to be treated
as such: s. 106(3) FA 1984 and
s. 103(1) FA 1986: "Interests in
expec t anc y" are defined in s.2(1)
CATA 1 9 76 to " i n c l u d e" an
" es t a te in remainder or reversion
and every other future interest,
whether vested or con t i ngen t ".
Wi de t h o u gh t he
d e f i n i t i on
undoubtedly is, it does not extend
to interests wh i ch are vested in
po s s e s s i on
but
s u b j e ct
t o
defeasance. " A distinction has to
be drawn between the exercise of
a power to terminate a present
right to present enjoyment and the
e x e r c i se of a p o w e r w h i ch
prevents a present right of present
enjoyment arising":
Pearson -v-
IRC
[ 1980] STC 318, 325 per
Viscount Dilhorne. An interest in
p r ope r ty w h i c h is v e s t ed in
po s s e s s i on
but
s u b j e ct
to
defeasance is therefore " p r ope r t y"
for the purposes of s. 106(1) FA
1984 and s. 103( 1) FA 1986:
in re
Kit pat rick's Po/cies Trusts
[ 1966]
Ch.730. An interest in property
w h i c h is c o n t i n g e nt on t he
attainment of a specified age, on
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