In Re Druce’s Settlement Trusts: ChD 1962

Russell J discussed the difficulties of trustees when making an application on behalf of a beneficiary of the trust: ‘The application was made not by a beneficiary but by the trustees. This is a disadvantage, particularly in a case such as the present, where the interests of the persons for whom the court is concerned are not exactly the same as those of some respondent. It means that there is no counsel whose sole task is to protect and support those interests. Where the trustees make the application their counsel is there to argue for the acceptance of the scheme: but at the same time his duty and that of the trustees is to be the watchdog for (for example) unborn interests. Let me say at once that Mr Brightman for the trustees, while recognising the disadvantage, overcame admirably the duality of his position. To change the metaphor, his performance as touch judge was not marred by the fact that he started in the line-out, and I was grateful for his assistance. Nevertheless, the disadvantages of this duality exist. Counsel for the applicant trustees must have an instinctive reaction against a criticism from the bench, designed to safeguard or benefit those unborn interests, which would be lacking in a respondent trustee, an instinctive tendency to be against alteration of the scheme for the approval of which he is applying. Moreover, if the criticism be in fact unsound, it is likely to take longer for the judge to be dissuaded from it because of that very duality. There are, of course, cases of applications to vary beneficial interests where it is necessary and proper that the trustees should make the application, notwithstanding the disadvantage I have mentioned. This case was one of them, the trustees being satisfied that the scheme was beneficial to their beneficiaries and no beneficiary being willing to make the application. But, in general, the trustees should not be the applicants in applications to vary beneficial trusts, unless they are satisfied that the proposals are beneficial to the persons interested and have a good prospect of being approved by the court, and further, that if they do not make the application no one will. In particular, it would not be right if it became the general practice for such applications to be made by the trustees upon the supposition that should the application fail it will be more probable (though not, of course, certain) that the costs of all parties will be directed to be met out of the trust funds.’
Russell J
[1962] 1 WLR 363
England and Wales
Cited by:

  • Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
    The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
    Held: A deferment of vesting . .
    [2011] EWHC 2881 (Ch), 14 ITELR 603, [2012] 1 WLR 802, [2012] STC 255, [2011] STI 3431, [2012] WTLR 549

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Updated: 01 December 2020; Ref: scu.448124