• Similar to any other GR in law, they are always exceptions.

• These exceptions are for the ‘time being’ exhaustive and seem to be the only ones
being applied in Malaysia.
• In the UK, the lack of allowance to deviate, and the cultural/domestic landscape
required more wiggle room
o As such the Variation of Trusts Act 1958 was introduced
o It codified the circumstances in which as trust can or may be varied
• Exceptions:
o Express power to vary
o Rule in Saunders v Vautier
o S.59 Trustees Act 1949
o Court’s inherent jurisdiction

I. Express Powers to Vary

➢ Starting Point:
❖ Paul v Paul [1882] 20 Ch D 742
o Once a trust is fully constituted-irrevocable & the settlor loses the power
to revoke it or amend its terms
• Embodies the GR/basic principle that the trust must be carried out according to
its terms and any deviation from them constitutes a breach of trust
❖ Re New [1901] 2 Ch 534

❖ Re Walker [1901] 1 Ch 879

• However, there may be instances where variations or deviations may be allowed

or provided for within the express terms of the trust instrument
• Very common for a trust to include provisions which allow the terms of the trust
to be varied by the settlor, trustees or protectors
o In each case with or without the requirement of consent by someone else

II. Rule in Saunders v Vautier

 • Where the beneficiaries are sui juris, or full age and absolutely entitled-
he/she/they may legitimately decide to bring the trust to an end
❖ Re Chardon[1928] Ch 464
❖ Re Smith [1928] Ch 915
• Recognized for the longest time that the beneficiaries of a trust can consent
to the execution of the trust in a manner other than that specified by the
settlors
❖ Re Pauling’s Settlement Trusts [1964] Ch 303, CA
❖ Saunders v Vautier [1841] Cr &Ph 240
❖ Goulding v James [1997] 2 All ER 239

• Position remains the same in respect of several beneficiaries

o Collectively entitled
o Consent unanimously
o Act together
• BUT law does not allow beneficiaries to override the trust provisions while the
trust remains in existence

III. S.59 Trustees Act 1949

• Provides express power for the court to authorise dealings with the trust property
• Does not confer a general right to rewrite the trust
❖ Re Downshire [1953] Ch 218
• s.59(1)
o management and administration of any property in the opinion of the court
expedient-as the court may think fit
• s.59(2)
o amplification of the court’s powers
(a) authorize the trustees to make any amendments in/upon titles to
immovable property-not authorize by para 4(1)(c)
(b) authorize the trustees to buy land
(c) authorize the trustees to raise funds to improve land/houses vested
in/belonging to the trust
(d) any act which appears to the court to beneficial to the trust estate or
to the beneficiaries
• s.59(3)
 o court may from time to time-rescind or vary any order under this section
or may make any new/further order
• S.59(4)
o Application to the court may be made by the:
Trustees
Any of them
Any person beneficially interested under the trust
READ THE SECTIONS WORD FOR WORD!!!!-this is merely a summary
 and then summarise in your own understanding!

❖ Re Estate of Yang Wai Man ex parte Yong Khai Min [1994] 3 MLJ 514
❖ Ramasamy & Ors v Thayalan SK Palanyandy & Ors [1993] 4 CLJ 281

IV. Court’s Inherent Jurisdiction

• Court has the inherent jurisdiction to depart from the terms of the trust but
ONLY in limited circumstances
• These circumstances are ONLY in relation to the administration or management
of the trusts
• The courts have NO authority or discretion to vary or alter the beneficial interests
o Go back to the GR/basic principle that the settlor’s wishes must be abided
by

1. Emergency
• Often it is in an emergency situation
o Eg: an occasion when no provisions were made in the trust instrument
o An event that could not be foreseen by the settlor
• Authorizes transactions involving the trust property which are not otherwise
permitted by the trust if a ‘peculiar set of circumstances arises’- no provision for
this in the instrument-per
❖ Re Jackson [1882] 21 Ch D 786
❖ Conway v Fenton [1888] 40 Ch D 512
❖ Re Montagu [1897] 2 Ch 8
• Previously- extended to situations even when there was NO absolute necessity