Many viewers were sad to see the end of the second series of Poldark which finished recently. This entertaining drama series, while providing us with more information than we ever needed to know about tin mining, also uncovered some interesting examples of the differences between the law at the end of the eighteenth century and how it stands today.
Following the tragic death of Poldark’s cousin Francis, his widow Elizabeth and young son Geoffrey Charles are left in poverty. Ross Poldark becomes a trustee of Francis’s estate which is left to his only son and heir.
Ross, dismayed by Elizabeth’s penury, anonymously buys the shares in his mine which are owned by the trust (then believed to be worthless) for £600. The mine subsequently hits a rich source of tin, and begins to generate a large income leading to a likely large increase in the value of the shares now back in Ross’s ownership. Elizabeth’s new husband (and Ross’s adversary), George Warleggan, questions the transaction, and Ross is forced to defend his actions.
Surely Poldark saved the day?
Elizabeth probably thought so when she and her tiny son received the much needed cash, but if modern day trust law is applied to this situation, Ross Poldark would find that Warleggan had grounds to challenge his arch-enemy’s generosity.
As a trustee of Francis’s estate Ross is under a duty not to profit from his trusteeship, and certainly he should not purchase trust property without making full disclosure, obtaining independent valuations and, unless authorised by the trust deed, seeking the beneficiaries’ consent.
If Ross had applied these modern standards of trusteeship to the situation, then Warleggan would have had no grounds to challenge a transaction that could easily appear somewhat questionable. After all, Ross had a clear conflict of interest between his position as the owner of the mine and his role as trustee for Geoffrey Charles, and acting under a cloak of secrecy made the position look even worse.
It would appear, however, as if the hapless Francis had had the sense to put his affairs in order. Given the appointment of Ross as a trustee, it would seem that he had made a Will and thought about who would manage Geoffrey Charles’s money until he came of age. Most people today are unlikely to come to an untimely end drowning in a mine, but anyone with children should give similar thought to what would happen should some modern day catastrophe befall them.
And while we’re on the subject
Contemporary law, or even the law of a hundred years later, would have helped Elizabeth. On her marriage to Warleggan she finds herself side-lined in dealing with the family’s affairs and forced to watch as her new husband inflames the locals’ ire by building fences around the family land and shooting intruders. In her helpless state, Elizabeth is in the same position as other women of her time, who gave up their legal identity on marriage and who were not allowed by law to own and control property in their own right.
Elizabeth’s grand-daughters (if she had any) would fare rather better, as the introduction of the Married Women’s Property Act 1882 allowed women to retain their property, married or not. Some things get better with age and modern law better protects both women’s legal rights and trust beneficiaries.
If you need our help with a 21st century trust, estate or Will problem please contact one of our private client specialists.