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 in favour of certain members of her family.
Held: The court was satisfied that the testator’s purpose, evidenced in the will, was still justified at the time of the application to vary. That was a view also shared by the trustees, who opposed the application by the protected life tenant. In those circumstances there was an overwhelming reason for the continuation of the protective trusts and in the continuance of the interest of the paragraph (d) class of person. The court said that the 1958 Act conferred ‘a revolutionary discretion.’ The intentions, wishes and motives of the settlor or testator may be relevant and weighty in desiding whether to accept a proposed variation. The court upheld a refusal to approve a variation on the basis that the proposed variation was contrary to the testator’s clear intentions. The court had an unfettered discretion which it could refuse to exercise if the arrangement was contrary to the testator’s wishes.
Lord Evershed MR: ‘After all, if the court is asked to approve this proposal on behalf of a spectral spouse (if I may revert to that phrase) it must ask, I take it, why is the spectral spouse there at all under the trust? If one asks that question, nearly everything else, as it seems to me, follows. There is no doubt why the spectral spouse is there. It was part of the testator’s scheme, made as I think manifest by the language which I have read from the clauses in the will, that it was the intention and the desire of the testator that this trust should be available for the plaintiff so that she would have proper provision made for her throughout her life, and would not be exposed to the risk that she might, if she had been handed the money, part with it in favour of another individual about whom the testator felt apprehension, which apprehension is plainly shared by the trustees.’
Lord Evershed MR
[1960] Ch 407, [1960 1 All ER 487, [1960] EWCA Civ 2, [1960] 1 All ER 487, [1960] Ch 407
Bailii
Variation of Trusts Act 1958 1
England and Wales
Cited by:
Cited – 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 . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.262817
