I am dealing with a statutory protective trust. Subject to the protective life interest for A, the capital will pass to the life tenant’s son B absolutely (without any contingency that he survive the life tenant). A is widowed, has no other children, and there are no remoter descendants.
The two beneficiaries are now considering whether they may wind up the trust and partition the capital under the rule in Saunders v Vautier. As it is a protective trust, any potential beneficiaries who would become objects of trustee discretion if the provisions of s.33 TA 1925 were to be triggered would also need to be considered to ensure they are all identifiable, sui juris and consenting.
Under s.33, if the life tenant triggered the protective provisions, the following persons would become objects of the trust: “A and his or her spouse or civil partner, if any, and his or her children or more remote issue”. Having read Lewin 6-088 re the rule in Andrews v Partington, my understanding is that the class of ‘A’s children or remoter issue’ would close immediately upon creation of the trust since B is in existence, and no children born later can be included. This would mean that A and B would be the only objects of the trust. However, I am I left with two sticking points:
I presume the date of ‘creation of the trust’ for determining the class-closing would be the date when A triggers the protective provisions of s.33, not the original commencement date of the trust. Since this has not yet happened (and may never happen), it cannot be said definitively that B would be the only child of A’s at that time.
Theoretically A could marry in the future, thus including an unidentifiable future spouse as a object of the discretions of s.33.
Of course, A is well beyond child-bearing years and unlikely to remarry but I believe that is irrelevant. Am I right to conclude that Saunders v Vautier will not be possible?
We would of course recommend that the parties take opinion from counsel before actually proceeding but I would be grateful for members’ views as I suspect this is a no-goer.