When Is A Fraud On A Power Actually A Fraud?

Fraud on a power is a well-established trust doctrine and one that crops up frequently in contentious trust applications both onshore and offshore. As such, it is always useful to have an aide-mémoire of the basics and also remind ourselves where, what may at first appear to be a fraud, is, in fact, perfectly acceptable.

As per Lewin 29-289:

the donee of a beneficial power may exercise it as he pleases; the donee of a power of any other kind must not misuse it; where the power is non-fiduciary a person is under no obligation to exercise it but where they do they must do so for a proper purpose; and the donee of a fiduciary power is under an obligation to consider exercising its power and if it does so it must do so for a proper purpose. The potential for a fraud on a power therefore does not merely cover powers of appointment but can be extended to more or less all powers exercised; amendment, investment, appointment of new trustees etc.

So, when is the donee at risk of perpetrating fraud in exercising these powers?

Vatcher v Paull [1915] AC 372, at page 378 established:

"The term [fraud] in connection with frauds on a power does not necessarily denote any conduct on the part of the appointor amounting to fraud in the common law meaning of the term or any conduct which could properly be termed dishonest or immoral. It merely means that the power has been exercised for a purpose, or with an intention, beyond the scope of or not justified by the instrument creating the power."

Commonly the claim is that the donee has exercised the power in favour of some person or purpose who is not an object of the power.

In Lady Wellesley v Earl of Mornington (1855) 2 K & J a father who exercised his power in favour of his child who was seriously ill with the purpose of benefitting himself; as he would inherit when the child died, was a fraud but contrast with the case a year later of Beere v Hoffmister (1856) 23 Beav 101 that established the donee can exercise its power to benefit a child even though the donee is the child's next of kin and will take such benefit if the child dies.

A more modern example would be a parent seeking an appointment out of a trust for the benefit of their child when the child itself is not a...