Case reference ET v JP 2018 EWHC 685 Ch
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.
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 ought to be involved anyway because of X’s condition. However, the Judge found that the reason X could not consent to the variation was because he was a minor. He considered that a literal reading of section 1(3) meant that X’s incapacity was because he was a minor and not because of an impairment or disturbance of the mind or brain.
The Judge very helpfully added that in the case of a beneficiary who is under eighteen, the question about giving consent to a variation will always be a matter for the High Court. The Judge said that would be the position even if the person was nearly eighteen and lacked capacity in relation to other matters within Section 2(1) of the Mental Capacity Act. The Judge went on to say that the High Court would still be the appropriate Court to decide, even if the person was already under the jurisdiction of the Court of Protection and had a Deputy appointed.