Goulding and Goulding v James and Daniel: CA 10 Dec 1996

The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court’s approval was necessary. The judge had refused to approve the variation, saying that it would be contrary to the intention of the testator, and that he was entitled to take into account other evidence of the testator’s wishes in deciding whether to approve the variation.
Held: The principles in Ladd v Marshall did not apply so strictly when an appeal court was exercising a protective and administrative function. Extrinsic evidence of a testator’s wishes was not admissible in evidence to amend the trusts of the will.
The court has a discretion whether or not to approve a proposed arrangement. That discretion is fettered by only one express restriction. The proviso to section 1 of the 1958 Act prohibits the court from approving an arrangement which is not for the benefit of the classes referred to in (a), (b) or (c). The approval of this arrangement is not prevented by that proviso, since it is plainly the case that it is greatly for the benefit of the class specified in section 1(1)(c)(3). The judge erred when he allowed extrinsic evidence of the subjective wishes of Mrs Froud as regards her daughter, son-in-law and grandson to outweigh considerations of objective and substantial benefit to the class on whose behalf the court is empowered to act. If the Judge had adopted the correct approach to the exercise of his discretion, he could only have come to the conclusion that the intentions and wishes of Mrs Froud, expressed externally to her will in relation to the adult beneficiaries and an adult non-beneficiary, had little, if any, relevance or weight to the issue of approval on behalf of the future unborn great grandchildren, whose interest in residue was multiplied five-fold under the proposed arrangement.
Mummery LJ
Times 07-Feb-1997, [1996] EWCA Civ 1156, [1997] 2 All ER 239
Variation of Trusts Act 1958 1
England and Wales
CitedLadd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
CitedHolmden’s Settlement Trusts, Re Holmden’s Settlement, Re HL 13-Dec-1967
Under the 1968 Act, the court is not in the position of a statutory settlor. Lord Reid described the provisions of the 1958 Act: ‘Under the Variation of Trusts Act the court does not itself amend or vary the trusts of the original settlement. The . .
CitedIn re Steed CA 26-Jan-1960
The court considered an application under the 1968 Act to vary a trust. The testator had shown in the terms of his will a particular purpose in creating a protective trust; that was to protect the life tenant from improvident dealings with property . .
CitedSaunders v Vautier 7-May-1841
A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of . .
CitedSpens v Inland Revenue Commissioners ChD 1970
The court declared the exercise of a power of appointment to create a sub-trust void under the rule against perpetuities. . .
CitedIn Re Remnant ChD 1970
Approval was sought of a proposed deed varying trusts created in the will.
Held: The testator’s intention would be defeated by the proposed arrangement which involved the deletion of the forfeiture provision dependant upon the beneficiary’s . .
CitedChapman v Chapman HL 25-Mar-1954
It was suggested to the House that: ‘A judge of the Chancery Division of the High Court of Justice has an inherent jurisdiction, in the execution of the trusts of a settlement, to sanction, on behalf of infant beneficiaries and unborn persons, a . .
CitedIn Re Holt’s Settlement ChD 1969
An application was made to vary the terms of a trust in favour of children.
Held: The court was ready to receive evidence from a mother whose children were due to become entitled to funds at the age of 21 that she believed it most important . .
CitedRe Ball’s Settlement Trusts ChD 1968
The curt was asked whether a resettlement of part of a trust fund on a new trust could be a variation which the court could approve under the 1958 Act.
Held: A variation under the Act must not be such as to change the fundamentals of the . .
CitedRe Burney’s Settlement Trusts ChD 1961
The court approved a proposed variation of a trust. . .
CitedRe Van Gruisen’s Will Trusts ChD 1964
The court considered the extent of its discretion to vary the provisions of a trust.
Held: The Court should ask whether, if the persons on whose behalf consent is to be given were themselves competent and reasonable, the bargain is one that . .
CitedRe Weston’s Settlement Trusts CA 1968
The settlor applied for the approval of an arrangement for the export of his trust to Jersey, where he had gone to live. The court considered its powers under the 1968 Act.
Held: The court should not consider merely the financial benefit to . .

These lists may be incomplete.
Updated: 19 April 2021; Ref: scu.80948