Judge: High Court Business List (Chancery Division)(Morgan J)
Citation:  EWHC 685 (Ch)
In this case Morgan J had to consider the proper interpretation of section 1(3) Variation of Trusts Act 1958. The issue was whether the High Court could approve a variation of a trust on behalf of a minor who lacked mental capacity or whether that approval had to be given by the Court of Protection.
Section 1 of the 1958 Act allows the court to approve variations of a trust on behalf, of, amongst others, those who lack capacity to approve the variation themselves.
In this case, one of the beneficiaries was 10 and severely autistic so lacked capacity to approve the variation because of his age and mental capacity.
Section 1(3) of the 1958 Act provides:
the jurisdiction conferred by subsection (1) of this section shall be exercisable by the High Court, except that the question whether the carrying out of any arrangement would be for the benefit of a person falling within paragraph (a) of the said subsection (1) who lacks capacity (within the meaning of the Mental Capacity Act 2005) to give his assent is to be determined by the Court of Protection.
Morgan J held that where the beneficiary is not able to approve the arrangement by reason of his age, then that is the reason why the court has to approve the arrangement and so section 1(3) does not apply and the issue does not have to be determined by the Court of Protection even if, additionally, the beneficiary is unable to approve the arrangement by reason of mental incapacity. (See paragraphs 16-27).
This case is an interesting example of a situation in which it may make a difference as to whether the lack of the relevant legal capacity derives from a lack of the relevant mental capacity or some other cause. In this case it was clear that the beneficiary in question could not approve by reason of age. In other cases, such as with 16 and 17 year olds, that may not be so clear and the question of whether, in those circumstances, a referral to the Court of Protection is necessary will arise again.