ET v JP [2018] EWHC 685 (Ch)

"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 way in which section 1 of the 1958 Act operates can be summarised as follows: (1) In the case of an adult beneficiary who has capacity within section 2(1) of the 2005 Act, the adult can decide for himself whether to agree to a proposed variation of a trust and the court has no power to give approval on his behalf; (2) In the case of an adult beneficiary who does not have capacity within section 2(1) of the 2005 Act to agree to the variation of a trust, the court has power to give approval on his behalf but the question as to whether the variation is for his benefit is decided by the Court of Protection rather than by the High Court; (3) In the case of a minor beneficiary, the minor does not have capacity (by reason of being a minor) to decide for himself whether to agree a proposed variation of a trust and the court has power to give approval on his behalf. The question then arises: what is the position of a minor beneficiary who, by reason of an impairment of, or a disturbance in the functioning of, the mind or brain would not have capacity for the purposes of section 2(1) of the 2005 Act to make decisions for himself in relation to certain matters? Is such a minor within section 1(3) of the 1958 Act so that the question as to whether a variation of a trust would be for his benefit is to be determined by the Court of Protection rather than by the High Court? If that question had to be referred to the Court of Protection and that court determined that the variation was for the benefit of the minor, the matter would then have to return to the High Court for it to give its approval to the variation under section 1 of the 1958 Act."

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.

The WLR Daily case summaries

[2018] WLR(D) 193

Chancery Division

ET v JP and others

[2018] EWHC 685 (Ch)

2018 March 8; 28

Morgan J

Trusts— Variation— Jurisdiction— Proposed variation for benefit of infant also suffering from mental incapacity— Whether question of benefit to be determined by High Court or Court of Protection— Variation of Trusts Act 1958 (c 53), s 1

Where an application is made for the court’s approval to the variation of a trust pursuant to section 1 of the Variation of Trusts Act 1958 because one of the beneficiaries is an infant, the question as to whether the variation is for the benefit of that beneficiary is determined by the High Court, not the Court of Protection, regardless of whether the minor also suffers from mental incapacity, since an infant is not a person within section 1(3) of the 1958 Act (paras 20, 21, 25, 27).

Where, therefore, an application was made to the High Court seeking the court’s approval to a variation of a trust whose beneficiaries included a ten-year-old who was severely autistic, and the question arose as to whether a judge of the High Court had jurisdiction to decide whether the variation was for the infant’s benefit—

Held, that there was no requirement to refer to the Court of Protection the question whether the proposed variation was for the infant’s benefit (para 26).

Per curiam. The question as to whether a variation of a trust is for the benefit of a beneficiary is also a matter for the High Court, and not the Court of Protection, where (i) the beneficiary is nearly 18 and lacks capacity in relation to other matters within section 2(1) of the Mental Capacity Act 2005 and (ii) the beneficiary’s circumstances have been considered in other respects by the Court of Protection and a deputy has been appointed in relation to that person (para 27).

William Massey QC (instructed by Birketts llp, Ipswich) for the claimant.

Georgia Bedworth (instructed by Birketts llp, Ipswich) for the minor beneficiaries.

James Rivett (instructed by Birketts llp, Ipswich) for the trustees.

Reported by: Louise Hopson, Solicitor

External link

BAILII

ICLR