Variation of Trust

It means in what circumstances changes can be made in the terms of the trust. After a trust has been validly created, it becomes apparent that it might be better that original terms were altered. Hence, variation of trust allows the trustees to do things beyond their powers.

CASE LAW: Saunders v/s Gautier: It states that changes can be made in the Trust. Hence, the general rule is that the original trust probate must be obtained and a breach of trust will be committed if the trustee changes the terms of the trust.

The case of NEW It has been said that even the court of law cannot change the terms of trust because there is the role of fidelity of the settlor when he has created the trust.

Exceptionally, in certain circumstances the terms of the trust can be varied and this prefers be the management and the administration of the trust and can also change the beneficial interest and the idea behind bringing changes of trust is for the benefit of the beneficiary.

9.2 Who can bring changes to the terms of Trust? This is governed by section 66 of the Trust Act. The court of law will allow the trustee to do acts not permitted by the terms of the trust, if the court has inherent jurisdiction to bring variation in the terms of trust.

9.3 2 Types of Variation 9.3.1 Management and Administration of Trust This brings changes enabling the trust to be run in a more productive and efficient manner.

9.3.2 Changes about beneficial interest of beneficiary This brings changes to the best interest of the beneficiary, as the main objective of a trustee is to

always act in the best interest of the beneficiary.

9.4 Circumstances where the court of law can intervene 9.4.1 Emergency Issues The court has power to allow trustees to do more administrative act which is outside the terms of the trust if am emergency arises. The court will only intervene if the act will not have been foreseen by the settlor when creating the trust. The power does not extend to change beneficial interest. In the case of NEW, says the approval will not be given unless the proposal benefits the beneficiary.

9.4.2 Salvage This inherent power will be exercised in only extreme situation when a crisis occurs, threatening the very existence of the trust property. The court may sanction (approve) actions of the trust property to save it where under the terms of the trust, the power was lacking.

CASE LAW Jackson 1982: Court approves of the trustees taking steps to raise money to be used to avoid collapse of buildings owned by the Trust. The power of salvage only allows changes in the powers of management and administration of trust. There is no power to sanction the alteration of beneficial interest.

9.4.3 Maintenance If a trust is created provided for a minor, the court may order that the minor is maintained from the income generated by the trust property even if it is against the terms of the trust. This power is normally exercised for a minor beneficiary but it is not limited to minors.

CASE LAWS Revel v/s Watkinson 1748: It says that it is not limited only to minors. Havley v/s Banister 1820: In the case of Havley v/s Banister 1820, it is not limited as with salvage or emergency situations which either were not foreseen or which unexpectedly arise.

9.4.4 Compromise The court approves compromises in cases where there is a dispute as the precise meaning of the terms of the trust. The court can agree or compromise on behalf of minor beneficiary. The dispute may relate to the administration power of trustees or beneficiary’s interest.

In Mauritius, nothing has been mentioned in the Trust Act concerning variation of trust this implies that there is no statutory provision if you want to bring variation in the trust. Instead you should refer to the issue of the court of law.