Albemarle John Cator & Ors v Ceawlin Henry Lazlo Thynn, Marquess Of Bath & Anor

For the purposes of a power of advancement, “benefit” is construed broadly. It may include material and moral benefit to the beneficiary, including relief from the need to make provision for family members who are outside the trust class. The benefit may arise from conferring a power to secure future provision, even if the trustees retain control over later appointments and the benefit may arise after the beneficiary’s death. The exercise must nevertheless be for the beneficiary’s benefit and not for an improper purpose. In a category (2) Public Trustee v Cooper application, the court asks whether the trustees formed the relevant opinion, whether it was one that a reasonable body of properly instructed trustees could reach, and whether it was unaffected by conflicts of interest.

The claimant trustees sought approval under CPR rule 64.2(a) for a proposed exercise of powers of advancement under family settlements. The proposed advancement would extend the class of potential beneficiaries so that the first defendant could later appoint his genetically related son, born through surrogacy, and the son’s issue.

The first defendant supported the application but did not appear. The second defendant represented beneficiaries who might be prejudiced and opposed approval. The court proceeded on the basis that there was reasonable doubt whether the son was already within the class, without deciding that question. The issues were whether the trustees had power to make the advancement, whether it was for the first defendant’s benefit and proper purpose, and whether the proposed exercise was proper.

1. Approval granted. The trustees were declared at liberty to exercise the proposed power of advancement.
2. The term “benefit” in a power of advancement has a broad meaning. It is not confined to direct financial gain. A disposition may benefit the beneficiary even though other persons benefit incidentally. Moral and social considerations may also amount to benefit, although they are more difficult to assess and must be considered realistically.
3. The first defendant would materially benefit because the trusts could provide for Henry, reducing the extent to which he would need to use his own resources. He would also obtain moral benefit from avoiding an unnecessary inequality between his children. The benefit was not prevented by the fact that the first defendant would receive a power rather than an immediate appointment, that the trustees controlled subsequent benefits, or that any benefit to Henry might arise after the first defendant’s death.
4. The proposed exercise was not for an improper purpose. The inclusion of Henry in the class was itself capable of benefiting the first defendant. The fact that the arrangement was structured to avoid potential United States tax difficulties did not alter that purpose. An exercise of an equitable power for an improper purpose would be void, not merely voidable.
5. This was a category (2), rather than category (3), Public Trustee v Cooper application. The court had to be satisfied that the trustees had formed the relevant opinion; that their opinion was one which a reasonable body of trustees, correctly instructed as to the trust instrument, could properly reach; and that it was not vitiated by a conflict of interest. The trustees had formed the opinion, their decision was rational and supported by the evidence, and no conflict was shown. The court did not need separately to decide whether it had to be satisfied that the proposed exercise would benefit the first defendant, since that requirement was satisfied on the facts.

First instance decision. The judgment records an earlier decision concerning the joinder of the second defendant: [2026] EWHC 209 (Ch).