Albemarle John Cator & Ors v Ceawlin Henry Lazlo Thynn, Marquess Of Bath & Anor

This is my judgment on the disposal of a claim under CPR Part 8, by which the trustees of certain trusts seek the court’s “blessing” under CPR rule 64.2(a) for their proposed exercise of a power of advancement in favour of the first defendant, who is the life tenant of the trusts. It follows a successful earlier application to me by the claimant trustees to join Caroline Jane Miller as the second defendant to the claim, to represent various beneficiaries of the trusts who would or might be prejudiced by the proposed exercise of power (see the judgment at [2026] EWHC 209 (Ch)). Before me, Henry Legge KC appeared for the claimants, and Alexander Learmonth KC appeared for the second defendant, Caroline Miller. The first defendant did not appear and was not represented, having previously written to the court out of courtesy to explain that he agreed with the approach of the claimants, and saw no need to add anything of his own by taking part.

In my judgment on the earlier application, I described the trusts concerned in these brief terms:

I went on to describe the substantive claim in these terms:

The evidence in support of the claim in contained in a witness statement of the second claimant, Mr Hervey-Bathurst, dated 14 November 2025, to which a bundle of documents has been exhibited. There was no suggestion that he should be cross-examined on his witness statement, and therefore I heard no live evidence. That limits my ability to disbelieve any of the written evidence (see egCoynev DRC Distribution Limited [2008] EWCA Civ 488, [58]), but, happily, that is not a question which arises here. I will come back shortly to the substance of the evidence filed.

As I have said, the second defendant was joined in order to represent the various beneficiaries of the trusts who would or might be prejudiced by the proposed exercise of power by the trustees. It was her role to put forward the arguments for saying that the court should not give its blessing to that proposed exercise. Mr Learmonth KC accordingly advanced those arguments before me (and really said everything that could properly be said for those that he represents). This means that my decision has been the subject of adversarial argument between opposing parties, and hence (to the extent that that were necessary) an issue estoppel can arise in relation to the decision which I make as between the various parties (and those they represent). I record here that I understand that the second defendant once joined made no request of the claimants for disclosure of further documentation beyond that already disclosed by them. Certainly, no application was made to the court for a disclosure order.

It is however important to note that the first defendant’s second son, Henry, is not a party to these proceedings, and he therefore cannot be bound by my decision. For this reason alone (though there are others) I was asked not to try to answer the question whether Henry was indeed excluded from the class of objects of the trusts in question. That would require consideration of matters which, so far as I am aware, have never been decided in English law. This is the status at common law of the child the product of the egg of a married woman fertilised by her own husband but actually born of another woman, a surrogate mother, in whom the fertilised egg was implanted and brought to term.

The question could not have arisen in practice until the egg extraction technology was developed which led to the birth of Louise Brown in this country in 1978. It is highly unlikely therefore that there can be any binding authority on the point. The trustees have been advised that it is at least doubtful that Henry is within the class of beneficiaries. I proceed therefore on the basis that Henry is excluded, and that the trustees wish to exercise their power of advancement in favour of the first defendant so as to confer upon him a power in effect to add Henry to the class of objects of the trusts.

The written evidence of the second claimant includes the following:

None of the evidence given seemed to me implausible or contradictory. On the contrary, it seemed highly credible to me, and I accept it all.

As the evidence quoted above makes clear, the terms of the trusts relied on in this case are to be found in a deed of appointment dated 29 May 1996 and made between the then trustees and the then Marquess of Bath (the first defendant’s father), under powers conferred by Lord Bath’s Longleat Settlement (Ceawlin’s Fund), the third of the three settlements referred to above. In this deed, the first defendant (then known as Viscount Weymouth) is referred to as “Ceawlin”. Clauses 1, 5, 6 and 9 of this deed relevantly provide:

By virtue of a recital at the beginning of the Deed, the expression “the Deed of Restriction”, referred to in clause 1(d) of the Deed, is a reference to a deed of restriction dated 24 May 1993, also made by the then Lord Bath and the then trustees. In that earlier deed it was relevantly provided that

The proposed exercise of the power of advancement (which is expressed not to affect the first defendant’s life interest or certain other interests in income) is this:

It will be seen that this does not purport to alter the substance of the dispositive trusts. Instead, it extends the definition of “the Restricted Appointable Class” to include further members to be appointed by the first defendant.

Before considering the main issue in this case, I must consider the threshold question whether the trustees actually have the power to make the proposed advancement. Since the whole point of the exercise of the power of advancement is to confer on the first defendant a power to add his son Henry to the class of appointable beneficiaries, the question must be whether this is indeed for the first defendant’s “benefit”. In this context, the term “benefit” is construed widely. An early decision was that in Roper-Curzon v Roper-Curzon (1871) LR 11 Eq 452. A marriage settlement conferred power on trustees to advance capital on a son of the marriage

The son had married two years before, without a marriage settlement, and neither he nor his wife had any income-producing property. The son was studying to become a barrister. Lord Romilly MR declined to sanction an outright advance to the son (“he may put [it] in his pocket”), but did sanction an advance into a settlement for the son for life, then for the wife for life, then on trust for such of the issue as might be appointed, with remainders over.

Again, in Re Halsted’s WT [1937] 2 All ER 570, for example, a power of advancement of capital in favour of a son of the testator “for the purpose of establishing him in business or otherwise for his benefit or advancement in life” was held to be capable of being exercised so as to give the son a life interest, with remainder to his wife for her life and thereafter absolutely to his children, in circumstances where he was otherwise unable to provide for them.

The judge, Farwell J, said (at 571G):

In Pilkington v. IRC [1964] AC 612 Lord Radcliffe, construing the phrase ‘advancement or benefit’ in section 32 of the Trustee Act 1925, said (at 635) that it covered “any use of the money which will improve the material situation of the beneficiary.” In Re Halsted’s WT the object of the power was made materially better off because he could satisfy his moral obligation to provide for his family at no cost to himself. But that does not mean that only material improvements can constitute “benefit” for this purpose. Nor does it mean that persons not in the class may not benefit. As Lord Radcliffe said (at 636):

Thus, in Re Remnant’s ST [1970] Ch 560, a will provided for two funds to be settled on his two daughters and their issue, with remainders over. But the trusts of each contained a forfeiture clause in case any of the issue should be or become a Roman Catholic or marry or live with a Roman Catholic. The daughters sought the removal of the forfeiture provisions, saying that they would create hard choices for their issue and could cause dissension in the family and that therefore it was a benefit for them to avoid these difficulties. They proposed an arrangement under the Variation of Trusts Act 1958, under which the trusts would be varied so as to remove the forfeiture provisions. Pennycuick J had to consider whether the arrangement was for the benefit of the non-adult beneficiaries on whose behalf he could approve it.

The judge said (at 566F-H):

The limits to that approach are illustrated by the decision of Hart J in X v A [2006] 1 WLR 741. In this case trustees of a marriage settlement sought directions as to whether it was open to them to exercise their powers of appointment in such a way as to release substantial trust capital to the life tenant (the wife of the settlor) for the purpose of enabling her to devote it to charitable causes, and also for members of her family who were not eligible to benefit under the settlement trusts as originally constituted. The life tenant and the settlor considered that they already had enough to live on, that other beneficiaries of the marriage settlement had access to other funds, and that they (the life tenant and the settlor) had a moral obligation to use their wealth for the benefit of others. Two of their children (who were remaindermen) were unhappy about the proposal. Hart J declined to “bless” the proposed appointments.

He referred to a passage in the judgment of Pennycuick J in Re Clore's Settlement Trusts [1966] 1 WLR 955, and then said:

More recently, Holden-Hindley v Holden-Hindley [2013] EWHC 3053 (Ch) was a case where the object of a power of advancement under certain trusts of valuable property had an illegitimate child, who could not benefit under those trusts. The trustees wished to exercise the power of advancement in favour of the mother, so as to enable her child to benefit. Roth J referred to Halsted, and said:

In the present case, the first defendant has two sons, both the genetic progeny of himself and his wife, although the second son was actually born of a surrogate mother. The first son (John) is unarguably within the class of beneficiaries. The doubt arises in relation to the second (Henry). Mr Legge KC accepts that there is inherent inequality in the family trusts already. Primogeniture is built in. There are dynastic considerations. Nevertheless, he says that Henry could reasonably expect to inherit after his elder brother and his issue, in the same way as any future legitimate naturally born sibling. He could also reasonably expect to take priority over any such subsequently born sibling. A certain amount of equality can nevertheless be attained. The first defendant would like that to be done. The present proposed advance on new trusts will achieve that object, and will be a material benefit to the first defendant as the father of both boys, who will not have to make provision for Henry out of his own resources. Mr Legge says that the trustees are certainly entitled to form that view, and that they have done so.

Mr Learmonth KC says that the concept of benefit is primarily objective, and, in so far as it is subjective, it is the trustees’ view that counts, not the first defendant’s. The trustees, rather than the first defendant, must genuinely believe that the advancement will be for the benefit of the first defendant. Mr Learmonth says that the first defendant gains no material benefit from the proposed advancement. The persons who can gain materially from it are Henry and his issue, but they are not members of the class. Moreover, the first defendant is not suggested to be in the same position as the son in Halsted, who could not afford to provide for his family out of his own resources. Worse, says Mr Learmonth, what is being conferred on the first defendant is a fiduciary power, which he cannot exercise for his own benefit anyway, but even if exercised would still leave the decision as to whether to confer any financial benefit on Henry in the hands of the trustees, so the first defendant has no ability of his own to secure the very thing which is said to be a benefit to him. In addition, the likelihood is that any material benefit to Henry would be conferred only after the first defendant’s death. Yet the power is one to benefit the life tenant.

Mr Learmonth went on to submit that it was at least arguable that moral issues were not within the scope of the power, and referred not only to what Lord Radcliffe said in Re Pilkington’s Trusts (cited above), but also to a decision of my own, Smith v Michelmores Trust Corporation Ltd [2021] EWHC 1425 (Ch), in which I cited from the decisions of the Royal Court of Jersey and the Court of Appeal of Jersey in Re Esteem Settlement 2001 JLR 7, 540.

Esteem was a case where a defendant (Sheikh Fahad) had been sued to judgment in England by his former employer (Grupo Torras, or “GT”) for a sum of about US$687 million in respect of the sheikh’s embezzlement of the employer’s assets. The Jersey trustee of a fund of about US$18 million, settled by the sheikh before the embezzlement (of which the sheikh and his immediate family were the objects), surrendered its discretion to the court on the question whether (as the employer sought) it ought to advance the whole trust fund by way of partial payment of the judgment debt, on the basis that this would be a benefit to the sheikh, both in reducing his debt and in enabling him to “confront his dishonesty”.

The Royal Court had said:

It held that the partial payment of the judgment debt was too small to constitute any kind of real benefit to the sheikh.

The Court of Appeal agreed. It said:

Smith was a case where a son, John, had been engaged in litigation with the executors of his mother’s estate over a partnership between the son and his mother. John lost, and was ordered to pay significant costs. When he did not do so, the executors made him bankrupt. The trustees of a discretionary trust (constituted under his late mother’s will) proposed to make an appointment in favour of John. At the time of the claim by the trustees for approval of their proposed appointment, he was still an undischarged bankrupt, but his automatic one-year discharge would take place on the day after the hearing of the application. The sum to be appointed to John was less than 11% of the outstanding debt to the mother’s estate. I refused to approve the appointment.

I said:

Having considered the comprehensive submissions of Mr Learmonth on this first point, I have reached the following conclusions. For my part I am satisfied that the first defendant will gain materially by not needing to provide for Henry, or not so much, because the family trusts will probably provide. He can spend his saved resources on other things, for which the family trusts will not provide. As for the power to be conferred on the first defendant being a fiduciary power, I have considerable doubts about that. It was formerly common for a testator to confer upon his widow not only a life interest but also a power of appointment amongst their children, so that the widow had some part of the parental power that the testator enjoyed during his lifetime, and this would normally have been treated as a personal rather than a fiduciary power. In any event, Mr Legge confirmed that, if the court approved the proposed exercise, the drafting would make clear that the power was a personal power.

Mr Learmonth’s point about the decision to confer benefit being in the hands of the trustees rather than the first defendant in my judgment rather misses the point. The trustees ultimately control all the benefits that follow after the first defendant’s death. What the first defendant desires is that Henry may be treated in a similar way to existing beneficiaries. The first defendant is to be given a power to place Henry in that position, not actually to confer the benefits himself. And it does not matter that the actual conferring of benefits takes place (if it does) only after the first defendant’s death. A considerable part of the benefit to the first defendant is knowing that Henry is one of the beneficiaries who may benefit in future.

Lastly, the authorities are clear that moral as well as material matters can constitute a benefit to the object of a power of advancement. It is harder to assess the benefit where moral matters are concerned, but it can be done. It is not necessary that the object recognise a moral obligation, but, if the object does not (or cannot) do so, then it is harder still to be satisfied that there is a benefit being conferred. Here the first defendant recognises his moral obligation towards his son, and there is no problem. It is not just a question of provision for Henry, but also of not allowing avoidable inequalities of treatment between children to cause difficulties in their relationships as they grow up.

I have no doubt that it is for the first defendant’s benefit that a power should be conferred upon him, if he should so decide in the future, to include his second son in the class of objects of the family trusts, so that his second son is not automatically excluded from benefits available to his other naturally born children. In my judgment, at least in circumstances where there is a reasonable doubt as to whether Henry falls within the class of beneficiaries already, and subject to the “improper purpose” rule discussed next, the trustees do have the power to make the advancement that they propose.

A second argument put forward by Mr Learmonth is that the proposed exercise of the power of advancement would be beyond the trustee’s powers as for an improper purpose (what we used to call a “fraud on the power”): see Grand View Private Trust Co Ltd v Wong [2022] UKPC 47, 25 ITELR 630, [56]-[62]. If so, the purported exercise of the power, being an equitable power, would be void, and not merely voidable: Cloutte v Storey[1911] 1 Ch 18, CA. What Mr Learmonth says is this:

Mr Learmonth goes on to say that the tenor of the evidence is how the trustees can somehow arrange for Henry, though not a beneficiary, to be included as a beneficiary. So, he submits that the true purpose is to allow benefit to be conferred on Henry in due course. This is also shown by the fact that Henry is not to be added immediately, to avoid current US tax concerns. It is therefore Henry that is the object of the intended benefit, not the first defendant.

The problem with these submissions is that the same could be said of the proposed appointments in Halsted, and in Holden-Hindley. Yet no-one then, or indeed thereafter, suggested that they were for an improper purpose. The answer to those submissions is that it is precisely the adding of Henry to the class that is the benefit to the first defendant, both materially and morally, just as the provision for the son’s wife and children was the benefit to the son in Halsted, and the provision for the illegitimate child was the benefit to the daughter in Holden-Hindley. And, if that is the benefit to the first defendant, there is every reason why it should be done in a tax efficient way, rather than in a way that causes avoidable tax problems for the existing trusts. In my judgment, this power is not being exercised for an improper purpose.

As I have already said, in Public Trustee v Cooper [2001] WTLR 901, Hart J distinguished between an application to establish the existence of a trustee’s power which was in doubt (category (1)) and an application to decide whether the exercise of a power the existence of which was not in doubt was proper in the circumstances (category (2)). He also went on (as I did not say earlier) to mention two other categories of application, the first of which was an application by trustees who wished to surrender their discretion to the court (category (3)). I make clear that this is not a category (3) case. The present trustees do not seek to surrender their discretion and ask the court to decide. On the contrary, the trustees have decided what they would like to do, and ask the court whether it is proper for them to exercise the power in that way.

Having decided that the trustees do indeed have the power to do what they propose, this is therefore a category (2) rather than a category (3) case. In relation to this category, Hart J said (at 923):

The Court of Appeal approved this approach in Cotton v Brudenell-Bruce [2014] EWCA Civ 1312, [12], though reformulating the test in more general terms. Lewin on Trusts, 20th ed, 2022, summarises the position similarly (footnotes omitted):

Mr Learmonth KC says that the trustees “have supplied next-to-no evidence of its decision-making process”. Only one of them has given evidence, they have not disclosed any minutes of trustee meetings or other communications, and they have not disclosed any legal advice given to them. I agree that the evidence could have been fuller. But I do not think that the fact that only one of them gives the written evidence, when all are claimants, and counsel for the claimants at the hearing puts the one witness statement forward on behalf of all of them, makes any difference. Nor do I think it matters whether trustee minutes or communications, or legal opinions, are exhibited. (In fact, there is at least one opinion of Mr Legge in the hearing bundle, as well as advice from a US lawyer.) If I believe the substance of the witness statement, and if that is sufficient for my purpose, then I do not need to see the underlying documents. How much evidence will satisfy the requirement of full and frank disclosure (if after Denaxe Ltd v Cooper that is still necessary) is case- and fact-specific.

On the evidence before me, I am entirely satisfied that the trustees have formed the opinion that they should exercise the power of advancement in the way proposed, on the basis that it would be for the benefit of the first defendant. It is not necessary for me to decide whether in addition the court need be satisfied that the proposed exercise would be for the benefit of the first defendant. This is because, if it were, on the facts of this case that hurdle too would be surmounted.

The next question is whether this is a proper opinion for the trustees to arrive at, such that the court should declare that the trustees are at liberty to exercise the power in this way. The evidence (at [23]-[25] of the second claimant’s witness statement, which I accept) gives three reasons for the trustees’ decision. Of these, the first is the most important. This is the perceived unfairness of treating the first defendant’s children differently, because one of them (Henry), although (like the elder son, John) genetically the son of the first defendant and his wife, was born of a surrogate mother. From this unfairness proceeds the moral benefit to the first defendant in putting his children on as equal a footing as the dynastic circumstances allow, as well as the material benefit of not having to provide for Henry out of his own resources to the same extent as he would have to if Henry continued to be outside the class of beneficiaries. These are significant benefits which in my judgment on their own well justify the trustees’ decision. The second and third reasons given add support for the decision in the form it is intended to be implemented, though in my judgment they are not strictly necessary.

The decision meets the test of rationality, in that it is one made in good faith, with a logical connection between the evidence and the reasons given, and is certainly not perverse: cf Hayes v Willoughby [2013] 1 WLR 935, [14], SC. There is no evidence or submission that the trustees have taken into account any irrelevant matters, or that they have failed to take into account relevant matters. In my judgment, it is a decision which a reasonable body of trustees could make in the circumstances.

As the second claimant makes clear in his witness statement (at [32]), which I accept, there are no circumstances suggesting any conflict of interest on the part of the trustees, and neither were any submitted to exist.

In my earlier judgment in this matter, I dealt in some detail with the impact of applications of this kind of the decision of the Court of Appeal in Denaxe Ltd v Cooper [2024] Ch 65: see [2026] EWHC 209 (Ch), [39]-[52]. I record here simply that, in my judgment, on the facts of this case as they are presented, and in the light of the arguments put forward, there is nothing further that I need to say about that decision. The potential difficulties have been taken care of. In other applications of this kind, the matter may well be different.

For the reasons given, I am satisfied that the court should approve the proposed exercise of the trustees’ power of advancement, and will make an order that the trustees be at liberty so to do.