ET v JP & Ors, Court of Appeal - Chancery Division, March 28, 2018, [2018] EWHC 685 (Ch),[2018] WLR(D) 193

Resolution Date:March 28, 2018
Issuing Organization:Chancery Division
Actores:ET v JP & Ors

Neutral Citation Number: [2018] EWHC 685 (Ch)





Royal Courts of Justice, Rolls Building

Fetter Lane, London, EC4A 1NL

Date: 28/03/2018



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William Massey QC (instructed by Birketts LLP) for the Claimant

Georgia Bedworth (instructed by Birketts LLP) for the Minor Beneficiaries

James Rivett (instructed by Birketts LLP) for the Trustees

Hearing dates: 8 March 2018

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  1. This judgment deals with one point which arose in the course of an application for the court's approval to a variation of a trust pursuant to the Variation of Trusts Act 1958 (``the 1958 Act''). The particular point arose in relation to section 1(3) of the 1958 Act which provides, in summary, that in the case of certain persons suffering from mental incapacity, the question as to whether the proposed variation is for the benefit of such a person is to be determined by the Court of Protection rather than by the High Court. On the facts of the present case there was an issue as to whether a minor who was a beneficiary under the trust was a person within section 1(3) of the 1958 so that the question whether the proposed variation was for his benefit should be referred to the Court of Protection.

  2. At the hearing, I pointed out that as I was a nominated judge of the Court of Protection, I would not need to adjourn the hearing to allow an issue to be referred to the Court of Protection but I could simply sit as a judge of the Court of Protection and determine the issue in that capacity. I also suggested that as I could sit both as a judge of the High Court and as a judge of Court of Protection I might not need to make a formal determination as to whether I was deciding the question of benefit for a relevant person in one capacity or the other. In response to that suggestion, it was pointed out that some applications for the court's approval under the 1958 Act are dealt with by Chancery Masters or by Deputy High Court Judges who are not nominated judges of the Court of Protection and in such a case the Master or Deputy Judge could not adopt an approach similar to the one I suggested but would need to know how to apply section 1(3) of the 1958 Act. I was told that there was no authority on the meaning of that subsection and it would be potentially helpful to have the court's ruling as to its meaning and effect.

  3. In those circumstances, I heard argument as to the meaning of section 1(3) and I gave my ruling to the effect that I did not need to refer any question to the Court of Protection. I then heard the application for the court's approval of the variation of the relevant trust. I decided that the proposed variation was for the benefit for all persons on whose behalf the approval of the court was required and I made an order approving the proposed variation. I indicated that I would subsequently give written reasons for my ruling as to the meaning and effect of section 1(3) and this judgment contains those reasons.

    The facts

  4. I need recite very little of the facts of this case for the purpose of this judgment. The adult beneficiaries under the relevant trust had consented to the proposed variation of the trust. The variation could affect the position of three beneficiaries who were minors and also the position of unborn and unascertained beneficiaries and the court's approval was sought on behalf of the minor beneficiaries and the unborn and unascertained beneficiaries. One of the minor beneficiaries, to whom I will refer as ``X'', was aged ten and was severely autistic. I am satisfied that it is appropriate to give this judgment in an anonymised form so as not to name X or to give other information as to the parties which might lead to the identification of X.

    The 1958 Act

  5. Section 1 of the 1958 Act, as amended, provides:

    ``1.-- Jurisdiction of courts to vary trusts.

    (1) Where property, whether real or personal, is held on trusts arising, whether before or after the passing of this Act, under any will, settlement or other disposition, the court may if it thinks fit by order approve on behalf of--

    (a) any person having, directly or indirectly, an interest, whether vested or contingent, under the...

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