1. By her will written in 2000, Lois, who died shortly after, appointed her brother, Ernest, as the trustee of a £100,000 discretionary trust for her three children, triplets Sean, George, and Roger, then aged 15. Under the terms of the trust, it was to vest upon the triplets turning 40, with Ernest given the power to, “allocate the trust funds to whichever child (or to any of their descendants in their place should they no longer be living at such time) or children as he should adjudge to be prudent, and in whatever share he should adjudge fair, having regard in both instances to their then situation in life.”
With 5 years remaining until the trust is due to come to an end, the triplets have become increasingly concerned with its investment performance. Despite now having a value of approx. £200,000, over the past 4 years there has only been a gain of £3,400. The triplets believe this is due to Ernest refusing to invest in concerns which do not match the pacifist, vegan philosophy Ernest developed approximately 5 years ago when he suffered a near-death experience after being attacked by a flock of sheep.
Ernest refuses to discuss trust affairs with the triplets, having responded to the most recent request by saying, “The running of the trust is down to me and God; it’s none of your business! If you keep asking, I will have to take that into account when making my decisions.
Recently, George and Roger asked Ernest for an advance payment of £10,000 each from trust funds to get them through the winter following the failure of their bouncy castle business after their sole, uninsured bouncy castle exploded when they hired it out to a party of drunken Morris dancers. Ernest refused, sending each of them a letter saying “You shouldn’t have wasted your money on such a silly business. If cold weather is good enough for sheep, then it’s good enough for you!”
Having watched a late-night discussion programme featuring well-known legal pundit Catherine Hughes, the triplets seek your advice concerning breach of trust. Advise them if (and if so, why) this may be possible in relation to the following:
a. Ernest’s investment strategy;
b. The information he provides to the triplets;
c. His refusal of the advance payments; and
d. Any other grounds on which such an action could be brought.
e. Additionally, advise Sean, George, and Roger whether (and if so, how) they can bring the trust to an end early.
OR
2. Describe and critically examine the approach the courts have taken to determining if property can be saved for charity using a cy-près scheme.
