Discuss the extent to which the courts should take the settlor’s intention into account when deciding whether to approve variations under the VTA 1958.

Introduction: Set out the basis on which the VTA allows the court to approve variations (i.e. s 1, the classes of beneficiaries covered and the general requirement that the variation should be for the benefit of the beneficiaries).

The relevance of the settlor's intention: there are several cases which suggest that the courts will take the settlor's intention into account. However, the core issue to address is the extent to which it is deemed relevant.

Key cases to address include Re Remnant's ST, Re Steed's WT and Goulding v James. The latter two cases are particularly important: both cases are Court of Appeal judgments and Goulding v James distinguished Re Steed's WT. Discuss the basis on which it was distinguished and contrast the cases' differing approaches to the relevance of the settlor's intention.

Benefit: the question of the settlor's intention typically arises when the court is considering whether a variation is beneficial under s 1. Goulding v James states that the settlor's intention is only relevant if it relates to the beneficiaries on whose behalf the court is being asked to consent. However, both Goulding and Re Remnant's ST suggest that it is only a factor to be taken into account – it is not a decisive factor.

Discuss whether this is an appropriate approach: discuss the unclear nature of the law on this area, e.g. how should the settlor's intention be balanced against other considerations? (Luxton provides a good analysis of this (see Key Debates).)

Re Holmden's ST [1968] AC 685 suggests that the VTA operates in a way similar to the rule in Saunders v Vautier, where the collective consent of all beneficiaries renders the settlor's intentions irrelevant. Assess whether this is correct. Should the court be able to disregard the settlor's intention?

Conclusion: draw together your arguments about the current legal position, remembering to offer a conclusion on whether the court should take the settlor's intentions into account.