The Court should ask whether the person on whose behalf it is consenting would, if of full capacity and properly advised, have been likely to have approved the arrangement on their own behalf, except the Court may not consent to an arrangement that is detrimental to that person. (f) The Court has a very wide discretion, but it is exercised in the interests of the person or class on whose behalf it is asked to consent. It does not stand in for the settlor or testator.
It would not do so lightly, but the Court approaches the matter from the perspective of those on whose behalf it is giving consent. (e) The Court may therefore approve an arrangement that is contrary to an express prohibition in the will or trust deed. 8 The Court’s jurisdiction is a statutory extension to that rule. The arrangement is commonly proposed by the trustee or trustees but it is not limited to them.Īnd together absolutely entitled to the trust property, have the right to defeat the settlor’s intention by varying or revoking the trust. (c) The arrangement may be proposed by whoever brings the matter to court. (b) “Revoking any trusts” can encompass both the termination of the existing trusts and the revocation of the existing trusts and their substitution by new trusts. (a) The Court’s role under the section is not to make orders varying or revoking trusts but to approve the arrangement on behalf of those not legally able to do so for themselves by standing in the shoes of the beneficiary on whose behalf it is acting. Re Estate of Byrne provides a comprehensive assessment of the scope of s 64A and points arising from that assessment as noted at in Jones & Ors as Trustees v Collings & Ors include: However, as a practical matter the section cannot be used if there are beneficiaries of age who do not consent. Section 64A of the Trustee Act provides for the court to consent on behalf of minor and unborn children. However, the rule in Saunders v Vautier cannot be used to change the terms of a trust without the trustees’ consent ( Re Brockbank, Stephenson v Barclays Bank). Pursuant to the rule in Saunders v Vautier the beneficiaries of a trust can (if all are of age and consent (and have capacity to do so) bring a trust to an end. The applicable law was the rule in Saunders v Vautier and s 64A of the Trustee Act. The trustees wished to vest and terminate the Trust where the classes of beneficiary were closed. The matter for consideration was a simple one. Jones & Ors as Trustees v Collings & Ors there were 61 sui juris beneficiaries at the time an application for variation was made as well as 2 minor beneficiaries and the potential for further as yet unborn beneficiaries. It also means that where beneficiaries are defined by reference to children and grandchildren there can be a significant number of beneficiaries over time. That puts quite an onus on the settlor to get it right. Family trusts can generally run for up to 80 years.
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