The plaintiff trustees of a discretionary trust governed by Cayman law sought a declaration concerning the power of variation conferred by the trust instrument, and which was in the following terms:
‘The Trustees may, with the consent of the Settlor during his lifetime, at any time and from time to time by instrument in writing vary, add to, revise or modify, the terms and conditions of this Settlement except that no such amendment may be made which either changes any Beneficiary hereunder or alters that [sic] terms of clause (I) of subsection 3.4 of this Settlement.’
The subsection referred to provided that on the death of the settlor certain sums must be paid to a former wife of the settlor, and subsequent distributions made. That subsection was itself the result of a variation made with the settlor’s consent.
The issue for the court was whether the power of variation continued to be exercisable after the settlor’s death.
The power was exercisable after the settlor’s death. In construing the instrument the court looked to give effect to the intention as expressed by the words used, giving the words their ordinary meaning but having regard to the factual matrix – IRC v Raphael and Investors Compensation Scheme v West Bromwich Buildings Society (No 1) followed. As a matter of syntax, the placement of the comma after ‘lifetime’ indicated the power was operative (a) while the settlor was alive, and with his consent; and (b) after his death, at any time and from time to time by instrument in writing. Moreover, the reference to Art 3.4(1) impliedly acknowledged that the power remained operative after the settlor’s death.
Declaration accordingly.JUDGMENT MCMILLAN J: Reasons for judgment  The matter before the Court arises from an Originating Summons dated 5 April 2019 issued by the Trustee of the Trust in question (the Plaintiff).  A Declaration was sought concerning the extent of the Power of Variation conferred on the Plaintiff by Art 5.25 of the Trust. …