ET v JP & Ors [2018] EWHC 685 (Ch)

The meaning of s1(3) of the Variation of Trusts Act 1958 had to be interpreted so that a decision could be made as to whether an application for a variation of a trust, one of whose beneficiaries was a 10 year autistic boy, should be heard in the High Court or the Court of Protection.

s1(3) of the 1958 Act says that if an incapacitous adult is a beneficiary to a trust, any application to vary that trust must be brought to the Court of Protection and not to the High Court. However, this case concerned a minor, who was incapacitous by reason of his age and because he was autistic. The question here was which court should hear the application for a variation of the trust, of which the minor was a beneficiary.

The Judge ruled that the High Court was the appropriate court. On the literal reading of s1(3) of the 1958 Act taken together with section 2(1) of the Mental Capacity Act 2005, the child was not able to assent to the variation by reason of being a minor. His inability was not by reason of another incapacity and was not because of an impairment or disturbance of mind or brain. Therefore the general result was that, in the case of a beneficiary who is under 18, the question as to whether the proposed variation was for his benefit will always be a matter for the High Court.

​Read the full text of the judgment on Bailii