Analysis
The adult beneficiaries of a trust had consented to a proposed variation of the trust. Since the variation affected the position of beneficiaries who were minors and unborn and unascertained beneficiaries, the approval of the court under s1 of the Variation of Trusts Act was required. One of the minor beneficiaries (X) was severely autistic and lacked capacity to consent.
Section 1(1)(a) of the Variation of Trusts Act 1958 provides that the court may approve an arrangement on behalf of any person who by reason of infancy or other incapacity is incapable of assenting. Section 1(3) provides that the jurisdiction conferred by the Act is exercisable by the High Court, except that the question whether a variation is for the benefit of a person under s1(1)(a) who lacks capacity within the meaning of the Mental Capacity Act 2005 is to be determined by the Court of Protection.
The question therefore arose whether the High Court had power to make an order in relation to X, or whether X’s assent could only be determined following determination of X’s best interests by the Court of Protection.
Held approving the arrangement on behalf of X and the other minor, unborn and unascertained beneficiaries:
1) The reason X was incapable of consenting to the arrangement for the purposes of s1(1)(a) of the Variation of Trusts Act 1958 was because of his infancy not because of his mental impairment, even though, had he not been a minor, he would have lacked capacity by reason of an impairment or disturbance of the mind or brain. Section 1(3) of the 1985 only applied where the mental impairment is the only reason for the lack of capacity to consent.
2) Accordingly, it was not necessary to refer the question of whether an arrangement is in the best interests of a minor who also lacks capacity to consent because of an impairment of the mind to the Court of Protection; it could be determined by the High Court.
JUDGMENT MORGAN J: Introduction [1] This judgment deals with one point which arose in the course of an application for the court’s approval to a variation of a trust pursuant to the Variation of Trusts Act 1958 (“the 1958 Act”). The particular point arose in relation to s1(3) of the 1958 Act which provides, in …Continue reading "ET v JP & ors [2018] WTLR 109"