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o obligation on bankrupt to draw on pension fund

o obligation on bankrupt to draw on pension fund

Postby dls » Tue Nov 01, 2016 7:39 pm

Horton v Henry; CA 7 Oct 2016
References: [2016] EWCA Civ 989, [2016] WLR(D) 506
Links: Bailii, WLRD
Coram: McFarlane, Gloster LJJ, Sir Stanley Burnton
Ratio: The trustee in bankruptcy appealed against a decision dismissing his application for an income payments order pursuant to section 310 of the 1986 Act in respect of income which might become payable to the respondent from his personal pension policies, were he to exercise his contractual rights under those policies to draw down a lump sum or other payments.
Held: The trustee's appeal failed. The bankrupt could not be obliged to take a lump sum from his pension funds so that it could to be treated as an income to supprot an Income Payment Order. Section 310 did not allow a reading which characterises a pension holder's contractual rights under their pension to elect, after reaching a certain age, to draw down, or 'crystallise' that pension, in the form of a lump sum or income payments. Such an entitlement was after acquired property, and not available to the trustee.
The judge in Raithatha had failed properly to allow for the depth of changes introduced by the 1999 Act.
Statutes: Insolvency Act 1986 310, Welfare Reform and Pensions Act 1999 11
This case cites:
    - Cited - Raithatha v Williamson ChD (Bailii, [2012] EWHC 909 (Ch), [2012] 1 WLR 3559, [2012] BPIR 621, [2012] WLR(D) 115, [2012] 3 All ER 1028)
    A bankrupt's present entitlement to compel payment of pension benefits fell to be included in the assessment of his income within the meaning of section 310(7) of the Insolvency Act. . .
    - Cited - Horton v Henry ChD (Bailii, [2014] EWHC 4209 (Ch), [2015] 1 WLR 2488, [2014] WLR(D) 551, [2015] BPIR 313, [2015] Pens LR 59, WLRD)
    The trustee in bankruptcy sought to oblige the bankrupt to make a capital draw on pension fund assets in order to support an Income Payment Order.
    Held: The judge dismissed the application for an IPO. The court had no power under section 310 . .
    - Cited - In Re Landau (A Bankrupt) ChD (Times 01-Jan-97, Gazette 29-Jan-97, [1998] Ch 223)
    At the date of the bankruptcy the bankrupt was entitled to a pension, payable in the future on his attaining the age of 65 years. He was aged 61 when the bankruptcy order was made, and 64 when it was discharged. The trustee claimed to be entitled to . .
    - Cited - Dennison v Krasner, Lesser, Lawrence CA (Times 18-Apr-00, Gazette 11-May-00, Bailii, [2000] EWCA Civ 112, [2001] Ch 76)
    A retirement annuity or personal pension was part of a bankrupt's estate before the recent Act, and vested immediately in the trustee on the bankruptcy. As such there was no need to make application to the court under s310 for an income payment . .
    - Cited - Blight and Others v Roger Brewster ChD (Bailii, [2012] EWHC 165 (Ch), [2012] BPIR 476, [2012] Pens LR 203, [2012] WLR(D) 26, [2012] 1 WLR 2841, WLRD)
    A judgment creditor, applied for an order requiring Mr Brewster, his judgment debtor, to elect to draw down a lump sum from his pension in order to enable the judgment creditor to obtain a third party debt order against the pension trustees. <br . .
    - Cited - In the Estate of Borger Deceased ([1912] VLR 310, Austlii)
    Supreme Court Victoria - Will - Construction - Legacy, lapse of - Death of beneficiary 'before he shall have become entitled,' meaning of.
    A testator devised his real estate to trustees upon trust for his brother J until his youngest surviving . .
    - Cited - Barclays Bank Plc v Holmes and others ChD ([2000] PLR 339, [2000] Pens LR 339, [2001] OPLR 37, Bailii, [2000] EWHC Ch 457)
    . .
    - Cited - Westminster City Council v National Asylum Support Service HL (House of Lords, Times 18-Oct-02, Bailii, [2002] UKHL 38, [2002] 1 WLR 2956, [2002] 4 All ER 654, [2002] HLR 58, (2002) 5 CCL Rep 511, [2003] BLGR 23)
    The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
    Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
(This list may be incomplete)
Jurisdiction: England and Wales

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