ET v JP & Ors

For the purposes of section 1(3) of the Variation of Trusts Act 1958, the Court of Protection determines whether a proposed variation benefits a person who cannot assent because of mental impairment or disturbance. A minor beneficiary falls within section 1(1)(a) because infancy itself produces incapacity to assent, but section 1(3) does not apply where minority is the reason for that incapacity. The High Court therefore determines the benefit of a variation for a minor, even where the minor also has a mental impairment and lacks capacity in other matters under the Mental Capacity Act 2005.

The claimant sought approval under the Variation of Trusts Act 1958 for a variation of a trust. Adult beneficiaries had consented. Approval was required for three minor beneficiaries and for unborn and unascertained beneficiaries. One minor beneficiary, aged ten and severely autistic, raised the question whether section 1(3) required the issue of benefit to be determined by the Court of Protection.

The judge, sitting also as a nominated judge of the Court of Protection, ruled that no reference was required. He then approved the proposed variation and gave written reasons for his construction of section 1(3).

1. The court held that section 1(3) of the Variation of Trusts Act 1958 must be given its literal meaning. The provision transfers to the Court of Protection the question whether an arrangement benefits a person within section 1(1)(a) who lacks capacity, within section 2(1) of the Mental Capacity Act 2005, to give assent.

2. Section 2(1) of the Mental Capacity Act 2005 is issue-specific. A person under 18 may lack capacity within that provision. However, section 1(1)(a) of the 1958 Act treats infancy as a form of incapacity. A minor cannot assent to the proposed trust variation by reason of infancy, even if the minor also has an impairment or disturbance of the mind or brain.

3. Section 1(3) applies where the mental impairment or disturbance is the single or only reason for the person’s inability to assent. It does not apply where there are two alleged reasons, one being minority. Accordingly, the question whether the variation benefited X remained for the High Court.

4. The legislative history of section 1(3), including its earlier forms under the Mental Health Act 1959 and the Mental Health Act 1983, did not assist in construing the current wording. The literal construction produced a clear and workable division of jurisdiction, and no policy reason justified departing from it.

5. The proposed variation was approved on behalf of all persons for whom approval was required. No question was referred to the Court of Protection.