Robertson and Others, Petitioners
| Jurisdiction | Scotland |
| Judgment Date | 19 January 1962 |
| Date | 19 January 1962 |
| Docket Number | No. 19. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
TrustVariationAlimentary liferentApproval of variation on behalf of unborn fiarsForm of orderTrusts (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 (1), provides, inter alia, that in relation to any trust under a will, settlement or other disposition, the court may, if it thinks fit, on the petition of the trustees or any of the beneficiaries, approve an arrangement, varying or revoking the trust purposes, 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, or (c) any person unborn. By the proviso to the subsection it is provided that the court shall not approve an arrangement thereunder on behalf of any person unless it is of the opinion that the carrying out thereof would not be prejudicial to that person. Sec. 1 (4) enacts,inter alia:"Where under any trust such as is mentioned in subsection (1) of this section a trust purpose entitles any of the beneficiaries to an alimentary liferent of, or any alimentary income from, the trust estate or any part thereof, the court may if it thinks fit authorise any arrangement varying or revoking that trust purpose and making new provision in lieu thereof, including, if the court thinks fit, new provision 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."
In a petition for the variation of trust purposes under sec. 1, subsecs. (1) and (4), of the Act, the petitioners craved the Court to "sanction" a scheme embodying the proposed variations. The variations sought involved the removal of the alimentary qualification upon a liferent, in order that the liferentrix might renounce part of the liferent, and the granting of authority to the trustees, upon such renunciation, to pay capital sums to her children from that part of the fee of which she had renounced the income. Although the interests of any issue who might subsequently be born of the children of the liferentrix, and who might be fiars of the liferented funds, would be affected by the proposed variations, the petitioners did not specifically seek the approval of the arrangement by the Court, on behalf of such issue, nor did they seek its authorisation in so far as it varied or revoked the alimentary liferent.
Held (1) that a crave for an order sanctioning a scheme was not appropriate to an application under either subsec. (1) or subsec. (4) of sec. 1, and, accordingly, that the application was defective in form, and (2) that the proper crave was for authority to an arrangement varying or revoking the alimentary liferent, and for approval on behalf of the unborn fiars.
Colville, Petitioner, supra, p. 185, applied.
Observed that, in applications under sec. 1 (1), figures of the income of an alimentary liferenter need not be disclosed in the pleadings, and (2) where there were no disputed facts, provided that there were separate counsel to represent the conflicting interests, it was competent for them to be instructed by the same solicitors.
Mrs Agnes Kathleen Davidson or Robertson, Miss Ruth Cameron Robertson and Miss Enid Margaret Robertson presented a petition to the Court of Session in terms of section 1 of the Trusts (Scotland) Act, 1961,1 for variation of the purposes of the testamentary trust of the late James Cameron Davidson.
The petition set forth2:"(1) That the late James Cameron Davidson of Windygates, Bishopton, Renfrewshire (hereinafter referred to as the testator), died on 23rd January 1946, leaving a trust-disposition and settlement and relative codicil dated respectively 7th August 1935 and 19th March 1941 and registered in the Books of Council and Session on 8th February 1946. The trustees at present acting under the said trust-disposition and settlement are the first-named petitioner, Mrs Agnes Kathleen Davidson or Robertson, residing at Windygates, Bishopton, Renfrewshire and William Laird M'Geachy, solicitor, 257 West George Street, Glasgow. (2) That by Purpose Third of his said trust-disposition and settlement the testator directed his trustees to pay the whole free annual income of his estate to his wife during her lifetime, and by Purpose Fifth thereof he directed his trustees as follows:Subject to the whole foresaid...
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Gordon's Trustees, Petitioners
...applied; and applicationcontinued for separate representation to be effected. Dicta of Lord President Clyde in Robertson and Others, Pets.1962 S.C. 196 at pp. 203-204 distinguished. Messrs Coutts & Co. (the trustees and executors on the estate of the late Lt. Col. Philip James Gordon) appli......