Graham Virgo: We can see that there will be circumstances
where it is important to vary a trust.
The trust may have been set up a long time ago
and the function of that trust today is simply not working.
Circumstances may have changed,
context may have changed,
previous requirements in the trust may no longer be relevant,
and therefore it's necessary to vary the trust.
Now we know, from the rule in Saunders v Vautier,
that it is possible for the beneficiaries of the trust,
if they all agree and they are all of age,
they can decide to terminate the trust.
And logically, they could decide as well that the terms of the trust should be changed.
And that can be left to the legal developments arising from Saunders v Vautier.
But what if all the beneficiaries of the trust
are not in a position to agree to such a change?
In particular, what if any of the beneficiaries are children,
who are below the age of majority,
and are not able to fall within the rule in Saunders v Vautier?
And even more complex, what if there might be future beneficiaries
who are not yet born?
How do we deal with them as well?
Well the answer is, we can’t rely on the rule in Saunders v Vautier,
but we have statutory intervention now,
through the Variation of Trusts Act of 1958.
And the function of that statute is to deal with those particular problems.
Where there are beneficiaries, for example, who are children,
or who are not yet born, then statutes may intervene
to enable the court to determine whether it's appropriate to vary the trust.
And effectively to provide consent for those who are not able to consent.
So when you are analysing this legislation,
do think about what the role of the court should be
in ensuring that the interests of children,
and those not yet born,
are protected when variation of trust issues are considered.