Variation of Trusts: Settlors' Intentions and the Consent Principle in Saunders v Vautier
| Published date | 01 September 1997 |
| DOI | http://doi.org/10.1111/1468-2230.00111 |
| Date | 01 September 1997 |
| Author | Peter Luxton |
Variation of Trusts: Settlors’ Intentions and the Consent
Principle in Saunders vVautier
Peter Luxton*
‘For a jurisdiction invoked thousands of times over almost forty years’, commented
Mummery LJ in Goulding vJames,
1
referring to the Variation of Trusts Act 1958,
‘there are remarkably few reported cases on its construction.’ Since the early
1970s, very few judgments in such cases have been given in open court,
2
the vast
majority of applications being both heard and judged in chambers. As a result,
although there is an accumulated body of judicial practice among judges and
counsel in the Chancery Division, very little of this has filtered down to the law
reports. It is therefore not perhaps surprising that the point at issue in Goulding v
James has taken so long to reach the courts. The case raised the question whether
the court should, on behalf of unborn beneficiaries, approve an arrangement
varying the trusts, which arrangement was accepted as being undoubtedly for their
benefit, where there was cogent extrinsic evidence that the variation would flout
the testatrix’s intentions in effectively destroying a carefully planned arrangement
that she believed was in the best interests of the sui juris beneficiaries.
Goulding vJames
By her will made in 1994, the testatrix, Mrs Froud, gave her residuary estate in
trust for her daughter, June Goulding, for life, remainder to June’s son, Marcus
Goulding, provided he attained the age of 40. In the event of Marcus’s failing to
attain that age, or dying before June (whether or not attaining 40), the children of
Marcus living at his death were to take the capital absolutely by substitution. In the
event of June’s predeceasing Marcus while Marcus was still alive and under the
age of 40, the will trustees were to have power to release the capital of the
residuary estate to Marcus (which would, of course, defeat the interests of
Marcus’s children).
Mrs Froud died in December 1994, leaving an estate valued at £1.14 million.
June and Marcus applied to the court for its approval to an arrangement varying the
trusts. Under the proposed arrangement, Mrs Froud’s estate was to devolve as if
her will had provided for the residuary estate to be held as to 45 per cent for June
absolutely; as to a further 45 per cent for Marcus absolutely; and as to the
remaining 10 per cent in trust for Marcus’s children. At the date of the hearing,
Marcus was aged 32, married to an American wife, and living in an artistic
The Modern Law Review Limited 1997 (MLR 60:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 719
* University of Sheffield.
I wish to thank Margaret Wilkie for her helpful comments on the draft.
1 [1997] 2 All ER 239, 246.
2 The rare exceptions include Re Chamberlain (1976) (transfer of settlement to Guernsey), unreported
construction of VTA 1958, s 1(1)(b)) and Anker-Petersen vAnker-Petersen (unreported), 6 December
1990 (extension of powers of investment).
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