Variation Flashcards
starting point for any question on variation
The rule in Saunders v Vautier
The court will not allow Ts to do anything not authorised by the trust instrument
Re New
What act allows the court to agree variations obo Bs who cannot speak for themselves?
Variation of Trusts Act 1958
Do the courts have to approve?
No, only if it thinks fit S1(1) - see Re Steed
Case where court did not have to give approval obo an unborn child
Re Pettifor - the woman was 70
If you are a d person AND something else, whatc are you treated as
A D person - Re Turners
If a variation amounts to a resettlement, the court will not approve it
Re Ball’s
If you have a vested or contingent interest no matter HOW remote, the court will not approve on your behalf
Knocker v Youle
If there is a double contingency (ie death plus) then the court WILL approve
Moncrieff
Starting point for a question on variation
The rule in Saunders v Vautier, must be of age Berry v Green, counrt has no inherent jurisdiction to contradict the instrument: Re New
Points to cover in a variation question (8)
- whose benefit; 2. discretoin; 3. limits; 4. risk; 5. what benefit; 6. policy; 7. settlors intention; 8. investment
The coutr will not approve a complete resettlement
Re T
The court will approve a variation just short of a resettlement IF the substratum is preserved
Re Ball’s
The court can take a risk a reasonable adult woudl take
Cohen’s will (little risk of parents predeceasing Grandma)
The court will not take an unreasonable risk
Cohen’s settlement - unborn bs might miss out altogether
The court took into account social and educational benefit
Re Weston
The court took into account choice of faith, choice of spouse, family conflict
Re Remnant
Strict application of rule that it must be in Bs benefit
Re Tinker’s - would not correct drafting oversight
Court will not approve where solely for tax avoidance
Re Weston (tax avoidance naked and unashamed)
Tax avoidance where the family had lived in Jersey for 19 years
Re Windeatt
Settlors intentions upheld
Protective trust, sponging brother, spectral husband - Re Steed
Settlors intentions ignored
Goulding v James - testators opinion of adult b’s irrelevant to consideration of children’s interest.
Court can vary investment clauses but not completely substitute them
Mason v Fairbrother
Mason v Fairbrother
Court can clarify or compromise investment clauses but not rewrite them.
