Variation of trusts—variation of trusts with the court's assistance
Variation of trusts—variation of trusts with the court's assistance

The following Private Client practice note provides comprehensive and up to date legal information covering:

  • Variation of trusts—variation of trusts with the court's assistance
  • Variation of trusts
  • Under the Variation of Trusts Act 1958
  • Persons on whose behalf the court may exercise jurisdiction
  • Under the Trustee Act 1925, s 57
  • Under section 64 of the Settled Land Act 1925
  • Under section 14 of the Trusts of Land and Appointment of Trustees Act 1996
  • Under section 24 of the Matrimonial Causes Act 1973
  • Under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975
  • Under section 53 of the Trustee Act 1925

Variation of trusts—variation of trusts with the court's assistance

Variation of trusts

It is open to a settlor to impose such trusts and confer such powers and discretions as they see fit. Consequently, the general rule is that the court has no inherent jurisdiction to vary the terms of a trust where those trusts are clearly expressed and valid. However, the court will vary a trust in certain circumstances.

Under the Variation of Trusts Act 1958

Under the Variation of Trusts Act 1958 (VTA 1958), the court may by order approve any arrangement:

'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.'

Persons on whose behalf the court may exercise jurisdiction

The court may approve an arrangement on behalf of:

  1. minors or persons otherwise lacking capacity

  2. unascertained persons

  3. unborns

  4. discretionary beneficiaries under protective trusts

Except in the case of discretionary beneficiaries under protective trusts, the court may only approve an arrangement if it 'would be for the benefit of that person'. The courts have construed benefit widely such that it may be a financial, moral or even social benefit.

An application can be made under VTA 1958, notwithstanding that it is:

  1. contrary to the known wishes of the settlor/testator

  2. contrary to the wishes of the trustees

  3. motivated solely by a desire to avoid the limitation

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