Variation

Question 1

starting point for any question on variation

Answer 1

The rule in Saunders v Vautier

Question 2

The court will not allow Ts to do anything not authorised by the trust instrument

Answer 2

Re New

Question 3

What act allows the court to agree variations obo Bs who cannot speak for themselves?

Answer 3

Variation of Trusts Act 1958

Question 4

Do the courts have to approve?

Answer 4

No, only if it thinks fit S1(1) - see Re Steed

Question 5

Case where court did not have to give approval obo an unborn child

Answer 5

Re Pettifor - the woman was 70

Question 6

If you are a d person AND something else, whatc are you treated as

Answer 6

A D person - Re Turners

Question 7

If a variation amounts to a resettlement, the court will not approve it

Answer 7

Re Ball’s

Question 8

If you have a vested or contingent interest no matter HOW remote, the court will not approve on your behalf

Answer 8

Knocker v Youle

Question 9

If there is a double contingency (ie death plus) then the court WILL approve

Answer 9

Moncrieff

Question 10

Starting point for a question on variation

Answer 10

The rule in Saunders v Vautier, must be of age Berry v Green, counrt has no inherent jurisdiction to contradict the instrument: Re New

Question 11

Points to cover in a variation question (8)

Answer 11

1. whose benefit; 2. discretoin; 3. limits; 4. risk; 5. what benefit; 6. policy; 7. settlors intention; 8. investment

Question 12

The coutr will not approve a complete resettlement

Answer 12

Re T

Question 13

The court will approve a variation just short of a resettlement IF the substratum is preserved

Answer 13

Re Ball’s

Question 14

The court can take a risk a reasonable adult woudl take

Answer 14

Cohen’s will (little risk of parents predeceasing Grandma)

Question 15

The court will not take an unreasonable risk

Answer 15

Cohen’s settlement - unborn bs might miss out altogether

Question 16

The court took into account social and educational benefit

Answer 16

Re Weston

Question 17

The court took into account choice of faith, choice of spouse, family conflict

Answer 17

Re Remnant

Question 18

Strict application of rule that it must be in Bs benefit

Answer 18

Re Tinker’s - would not correct drafting oversight

Question 19

Court will not approve where solely for tax avoidance

Answer 19

Re Weston (tax avoidance naked and unashamed)

Question 20

Tax avoidance where the family had lived in Jersey for 19 years

Answer 20

Re Windeatt

Question 21

Settlors intentions upheld

Answer 21

Protective trust, sponging brother, spectral husband - Re Steed

Question 22

Settlors intentions ignored

Answer 22

Goulding v James - testators opinion of adult b’s irrelevant to consideration of children’s interest.

Question 23

Court can vary investment clauses but not completely substitute them

Answer 23

Mason v Fairbrother

Question 24

Mason v Fairbrother

Answer 24

Court can clarify or compromise investment clauses but not rewrite them.