Colville, Petitioner
| Jurisdiction | Scotland |
| Judgment Date | 15 December 1961 |
| Date | 15 December 1961 |
| Docket Number | No. 18. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
TrustVariationPower of Court to sanction variationExtentAlimentary liferentInterests of beneficiariesEffect of variation on fiarsTrusts (Scotland) Act, 1961 (9 and 10 Eliz. II, cap. 57), sec. 1.
ProcessPetitionVariation of trust purposesProcedureTrusts (Scotland) Act, 1961 (9 and 10 Eliz. II, cap. 57), sec. 1.
The Trusts (Scotland) Act, 1961, by sec. 1, enacts, inter alia:"(1) In relation to any trust taking effect, whether before or after the commencement of this Act, under any will, settlement or other disposition, the court may, if it thinks fit, on the petition of the trustees or any of the beneficiaries, approve on behalf of(a) any of the beneficiaries who by reason of nonage or other incapacity is incapable of assenting, or (b) any person (whether ascertained or not) who may become one of the beneficiaries as being at a future date or on the happening of a future event a person of any specified description or a member of any specified class of persons, so however that this paragraph shall not include any person who is capable of assenting and would be of that description, or a member of that class, as the case may be, if the said date had fallen or the said event had happened at the date of the presentation of the petition to the court, or (c) any person unborn, any arrangement (by whomsoever proposed, and whether or not there is any other person beneficially interested who is capable of assenting thereto) varying or revoking all or any of the trust purposes or enlarging the powers of the trustees of managing or administering the trust estate: Provided that the court shall not approve an arrangement under this subsection on behalf of any person unless it is of the opinion that the carrying out thereof would not be prejudicial to that person." "(4) Where under any trust such as is mentioned in subsection (1) of this section a trust purpose entitles any of the beneficiaries (in this subsection referred to as the alimentary beneficiary) to an alimentary liferent of, or any alimentary income from, the trust estate or any part thereof, the court may if it thinks fit, on the petition of the trustees or any of the beneficiaries, authorise any arrangement varying or revoking that trust purpose and making new provision in lieu thereof, including, if the court thinks fit, new provisions for the disposal of the fee or capital of the trust estate or, as the case may be, of such part thereof as was burdened with the liferent or the payment of the income: Provided that the court shall not authorise an arrangement under this subsection unless(a) it considers that the carrying out of the arrangement would be reasonable, having regard to the income of the alimentary beneficiary from all sources, and to such other factors, if any, as the court considers material, and (b) the arrangement is approved by the alimentary beneficiary "
The alimentary liferenter of part of a trust estate presented a petition to the Court, in terms of sec. 1 of the Act, for approval and authorisation of an arrangement varying the purposes of the trust. The proposed arrangement provided that the alimentary liferent interest of the petitioner, in a portion of that part of the trust estate liferented by him, should be enlarged into a right of fee; that his alimentary liferent interest in the remaining portion should be brought to an end, and that thereafter the trustees should hold the latter portion for behoof of the prospective fiars of the trust estate, subject to substantial variations of the rights conferred upon the fiars by the testator. The petitioner sought the approval of the arrangement by the Court, in terms of subsec. (1), on behalf of a beneficiary who was in pupillarity, and on behalf of unborn issue who might become entitled to an interest in that portion of the trust estate.
Held (1) that sec. 1 did not enable the Court to make a new will or a new purpose in a will which would completely supersede the old; (2) that, in considering, in terms of subparagraph (a) of the proviso to subsec. (4), whether the carrying out of the arrangement would be reasonable, the Court would have regard, inter alia,to the effect of the arrangement on the fiars of the liferented funds; and (3) that, the arrangement being beneficial to both the alimentary liferenter and the fiars, it should be approved and authorised.
Observed that, in the normal case, in a petition under sec. 1, it was appropriate that the variations proposed should be set out in an appendix to the petition, so that, if the variations were sanctioned by the Court, the appendix could be recorded in the register or registers in which the trust deed was recorded.
Observations on the nature of proceedings in applications under sec. 1, and on the forms of procedure therein.
Colonel Norman Robert Colville, M.C., presented a petition to the Court of Session in terms of section 1 of the Trusts (Scotland) Act, 1961,1 for approval and authorisation of an arrangement varying the purposes of the testamentary trust of the late David Colville, who died on 16th October 1916 leaving a trust-disposition and settlement dated 30th November 1915 and registered in the Books of the Commissariat of Lanarkshire on 27th February 1917.
By his trust-disposition and settlement the testator conveyed his whole estate to trustees for certain purposes. After making certain prior provisions, including the provision for his wife, if she should survive him, of an alimentary liferent of a part of his estate, the testator, by the fifth purpose of his settlement, directed his trustees, inter alia, as follows:" and they shall hold the residue of my estate for behoof of my son and daughter equally between them for their liferent alimentary use allenarly and for behoof in fee of their respective lawful issue, in such proportions and subject to such conditions and restrictions including so far as competent restrictions to a liferent as my respective children may appoint by any writing under his or her hand, and failing issue for behoof of the other of my said children or their issue on the same conditions and subject to the same restrictions as is provided
with regard to their original share; Declaring that unless otherwise appointed by my son or daughter, who shall have power so to appoint, the shares falling to issue shall vest in them in the case petitioner, of males when they attain the age of twenty-one years, and in the case of females when they attain that age or are married, whichever event first happens; Declaring further, that in the event of the survivor of my said children dying without leaving issue, or in the event of such issue not living to take a vested interest, the survivor of my said children shall have power to dispose of one half of the share held in liferent by him or her by any deed or writing mortis causa which he or she may see fit to make, the other half or the whole of said share, if my son or daughter do not so dispose of the same, falling into residue as provided in the Sixth Place and in the Last Place." By the sixth purpose the testator provided that, subject to the provisions in the fifth purpose, and failing these taking effect, the residue of his estate should be held for his wife, and by the last purpose he provided,inter alia, that, subject to the provisions in the fifth and sixth purposes and failing their all taking effect, the residue of his estate should be held for behoof of the children of his brothers and sistersThe testator was survived by his wife, and by his son, who was the petitioner, and his daughter, Lady Bilsland of Kinrara. After the death of the testator's wife, the whole material provisions of his settlement were satisfied, apart...
To continue reading
Request your trial
-
Gordon's Trustees, Petitioners
...which apply to that type of application are to some extent administrative, as Lord President Clyde himself pointed out inColville, Pet. 1962 S.C. 185 at p. 192. It is for this reason that it has been decided that the court is not bound to adhere to strict rules of evidence or to the rules a......