Editorial Committee of the Cambridge Law Journal

Discretionary Trust. Release by Object. Discretions of TrusteesAuthor(s): John HopkinsSource: The Cambridge Law Journal, Vol. 28, No. 1 (Apr., 1970), pp. 35-37Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505350 .

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36 The Cambridge l/tw Journal [1970]

payment of $3-4 million renounced all claim against the estate and

also their interests under the settlements.

Upon learning of the decision in Re Gresham, the trustees of the

settlements, which were governed by English law, had refrained from

making any payment to G., who had previously received the bulk

of the income. After the decision in Whishaw v. Stephens in 1968, two matters were referred to the court by them, first, as to whether

G. and his wife had by the Lisbon agreement effectively renounced

their interest so that the trustees might no longer exercise their

discretion in their favour and, secondly, as to whether the trustees

might exercise their discretion in favour of other objects of the

settlements ex post facto in respect of income accumulated between

1957 and 1968: see Re Gulbenkian's Settlements (No. 2) [1969] 3

W.L.R. 450 (and [1969] 2 All E.R. 1173, where the facts are more

fully and clearly set out). Plowman J., at [1969] 3 W.L.R. 456, noted that the Lisbon

agreement "

operated as a release of the general testamentary power of appointment" and, on the first issue referred to him stated that

no authority had been cited which bore directly on it but that the

general principle, derived from the Year Books and restated in

Thompson v. Lxach (1690) 2 Vent. 198, that " a man cannot have

an estate put in him in spight of his teeth" should apply. More

comprehensively, in Plowman J.'s own words, " if a man cannot be

compelled to accept a gift I see no reason why he should not be

equally free to refuse to accept the exercise of a power which the

donor has conferred on the trustees to make a gift in his favour."

G. and his spouse thus ceased to be objects of the settlements.

Of course a donee need not accept a gift: he may disclaim. For

a modern example of such disclaimer, see Re Paradise Motor Co. Ltd.

[1968] 1 W.L.R. 1125. And Plowman J.'s decision in the present case is both convenient and in no way surprising. Two matters, however, call for comment. First, it is stated in Scott, The Law of Trusts, 3rd ed. (1967), Vol. 1, p. 294, "if a trust is created without notice to the beneficiary, or the beneficiary has not accepted the

beneficial interest under the trust, he can disclaim." G. had

accepted periodic payments under the settlements until 1957.

Presumably, however, in this regard, a distinction is to be drawn

between a vested interest which may not be so disclaimed once

accepted, and a mere spes that the trustees will exercise their power in future, which may be. Secondly, in Pilkington v. Inland Revenue

Commissioners [1964] A.C. 612 (and see [1963] C.L.J. 42) Lord

Radcliffe noted at p. 637 that the exercise of a power of advancement

by trustees may be without reference to the consent of a beneficiary.

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