Phillips

JurisdictionScotland
Judgment Date05 March 1964
Date05 March 1964
Docket NumberNo. 15.
CourtCourt of Session (Inner House - First Division)

1ST DIVISION.

No. 15.
Phillips

TrustVariationInterests of beneficiariesFee of trust estate to issue of testator, whom failing to distant relations and charitiesRemoteness of interestCircumstances in which approval unnecessary on behalf of remote minor beneficiaries"Beneficiary"Trusts (Scotland) Act, 1961 (9 and 10 Eliz. II, cap. 57), sec. 1 (1) and (6).

The Trusts (Scotland) Act, 1961, by sec. 1, enacts, inter alia:"(1) In relation to any trust taking effectunder 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(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 arrangementvarying or revoking all or any of the trust purposes(6) In this section the expression beneficiary in relation to a trust includes any person having, directly or indirectly, an interest, whether vested or contingent, under the trust."

A testator, after charging the residue of his estate with an alimentary annuity to his wife, provided that on her death the free annual income of the residue should be paid to his children and issue of predeceasing children, which issue were to take equally among them the share that their deceased parent would have taken, and that on the death of the last survivor of his children the capital of the residue was to be paid in certain proportions to the issue then alive of his children; and, failing such issue, one-half of the residue was to be paid as he might afterwards direct and the other half to his brothers and sisters and their issue per stirpes. By codicil he provided that, in the event of his children dying without issue, one-half of the residue was to be divided among certain remote relations and their issue and certain charitable organisations, and that, in the event of there being no survivor or surviving issue of his brothers and sisters, the half of the residue destined to them was to be divided similarly.

The testator was survived by three daughters and one son. One of the daughters died without issue. The son died survived by a son, who in terms of the testator's will enjoyed a liferent of the part of the residue liferented by his father. This grandson and the two surviving daughters of the testator, together with the whole major children of the daughters, presented a petition for approval and authorisation of an arrangement which enlarged the interests of the grandson and the two daughters into a right of fee, made subsidiary trust provisions for the remoter issue in the direct line of the testator and protected the interest of the remoter beneficiaries by insurance.

Held, in the circumstances of the case, (1) that the petition should be served on the trustees of the testator's will and on the descendants of the testator and that service on the remoter beneficiaries might be dispensed with; and (2) that the interest of the remoter beneficiaries was negligible and that it was unnecessary to protect it by insurance.

Mrs Elizabeth Jessie Currie Or Phillips And Others presented a petition under section 1 of the Trusts (Scotland) Act, 1961.1

The petition narrated, inter alia, as follows:"(1) That the late James Currie, shipowner, of Larkfield, Wardie Road, Edinburgh, and of Inverawe and Fanans, Argyllshire, died on 3rd November 1930 domiciled in Scotland, leaving a will and codicils whereby he assigned, disponed and conveyed his whole means and estate to the trustees therein named for the purposes therein mentioned. Extract of the said will and codicils, dated 29th August 1929 and subsequent dates, and registered in the Books of Council and Session on 11th November 1930, is produced herewith. The present trustees acting thereunder are:Rowley Fielding Scovell, shipowner, of Trinity Cottage, Goldenacre, Edinburgh, 5, Patrick Watson Turcan, Writer to the Signet, of 16 St Andrew Square, Edinburgh, 2, and the said James David Peterkin Currie, residing at Liberton House, Edinburgh, 9. (2) After providing for the payment of debts, funeral expenses and death duties and all such legacies as he might direct to be paid on his death, the testator in purposes (Fifth) to (Eighteenth) inclusive of his said will made certain provisions for the disposal of his heritable estate and certain other funds. By purpose (Nineteenth) he directed his trustees to pay out of the residue of his estate an annuity to his wife and to make certain payments of tax on her behalf, and if there should in any year remain a balance of income over after making the said payments, such balance was to be added to and merged in the residue of his estate. The testator was survived by his said wife, who died on 8th July 1939. All the abovementioned purposes of the testator's will have been discharged. (3) Purpose (Twentieth) of the said will is in the following terms:(Twentieth) On the death of my wife if she survive me, or on my death if she predecease me, my trustees shall pay such legacies as in these cases are herein or otherwise provided, and shall hold the whole residue of my estate and shall pay the free annual income thereof under deduction of income tax at the standard rate to my children or their issue, each of my daughters if she shall be alive, or her issue taking in her place if she shall be dead, taking one share, and my son James if he shall be alive, or his

issue taking in his place if he shall be dead, taking two shares, and such issue of any of my children shall in the event provided share equally among themselves per stirpes, and in such case shall take among them the share which their deceased parent would have taken if alive, and, on the death of the last survivor of my children, my trustees shall pay and make over absolutely the capital of the whole residue of my estate to the issue then alive of my children in the proportion in which they would be entitled to share in the income under the above provisions; And, failing such issue of my children, my trustees shall, on the death of the last survivor of my children, divide the capital of the residue into two equal parts, and they shall pay and make over the one part as I may hereafter direct, and shall pay and make over the other part to my brother and sisters or their issue, equally among them per stirpes, or, failing such brother and sisters and their issue, as I may hereafter direct by writing under my hand: declaring that no part of the capital...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT