Which Court? The Case Of A Minor Trust Beneficiary Who Lacks Capacity

Case reference ET v JP 2018 EWHC 685 Ch

Which Court?

If you want the Court to vary a trust with minor beneficiaries but one of those beneficiaries lacks capacity, do you go the Court of Protection or the High Court?

Answer - the High Court every time.

In this case, the parties could have been forgiven for thinking that the Court of Protection needed to be involved. Section 1(3) of the Variation of Trusts Act 1958 says that where people lack capacity the Court of Protection needs to be involved where a variation is proposed. You would particularly think so where the beneficiary already has a Deputy appointed for them or where they are almost eighteen. However, the Court was clear here that the reason the minor could not consent to the proposed variation of trust was not because of their lack of capacity but purely because they were a minor. On that basis, the High Court was the correct Court to ask.

Case Summary

In this case, the adult beneficiaries under the trust had consented to the proposed variation. There were three other beneficiaries who were minors who could be affected by this variation as well as unborn and unascertained beneficiaries. The Court was being asked to approve the variation on behalf of the minors and the unborn and unascertained.

One of the minors, X, was aged ten and severely autistic. The Court was clear that if X had been over eighteen and had lacked capacity to consent to the variation, then it would have been appropriate to ask the Court of Protection. The Court of Protection still...