Benjimen Jennings & Anor v Graham Appleby [2026] EWHC 1161 (Ch)

[2026] EWHC 1161 (Ch)Case No PT-2025-000827
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 19 May 2026
Before
MASTER BRIGHTWELL
Between
BENJIMEN JENNINGSClaimantKENNETH WHITEClaimantGRAHAM APPLEBYDefendant
Giles Richardson KC (instructed by Maurice Turnor Gardner LLP) for ClaimantsEdward Hewitt (instructed by Maurice Turnor Gardner LLP) for DefendantHearing Hearing date: 19 December 2025
Approved JudgmentCrown Copyright ©
[1]This is a claim by which the trustees of the settlement known as the Lloyd Trust seek the blessing of the court to their momentous decision to terminate the settlement and to appoint the trust assets to the Fulston Manor Academies Trust, a charity which operates two academy schools in Sittingbourne, Kent. The trust property contains land which can be made available for recreational purposes and, given its geographical connection to many of the trust beneficiaries (described further below), would continue to provide a benefit for many beneficiaries. At the hearing on 19 December 2025 I indicated that, under the Public Trustee v Cooper ([2001] WTLR 901) jurisdiction, I would approve the decision of the trustees for reasons which I gave on that occasion (and do not repeat here), but that I would provide a written judgment on a point of law arising as to the validity of the trust.[2]Before the hearing, I asked counsel to address me on the question of administrative unworkability. The evidence in support of the claim indicated that the number of beneficiaries or objects of the trust had become very large indeed. Given a suggestion in a leading textbook, discussed further below, that a trust may become invalid or voidable for supervening administrative unworkability, even if valid at the outset, this seemed to me a point which ought to be properly considered.[3]In earlier proceedings, I made an order on 23 July 2025 appointing the claimants as trustees of the settlement, given doubts as to whether the deeds previously appointing them had been validly made.[4]Once the present claim had been issued, on 12 September 2025 I made an order under CPR r 19.9(2)(d) appointing the defendant as representative for all beneficiaries of the settlement.

The settlement

[5]The settlement was created on 28 March 1914 by Messrs Frank Lloyd and Harry Lloyd as settlors and Messrs Harry Lloyd, Francis Neville Lloyd, William John Whyte, Robert Duncan Bell and Percy George Densen as initial trustees. The initial trust property was the sum of £55,700.[6]Frank Lloyd was the son of Edward Lloyd, owner during the 19th century of Lloyd’s Weekly Newspaper and The Daily Chronicle. In 1863, he bought Sittingbourne Mill and in 1889 formed Edward Lloyd Ltd (“the Company”). After his death, Frank Lloyd expanded it such that by 1912 Sittingbourne Mill was the largest paper mill in the world.[7]As far as the application of the income of the trust is concerned, clause 6 provides:
‘6 THE Trustee shall subject as hereinafter mentioned apply all interest received from United Newspapers Limited and the Company in respect of moneys lent to them respectively and any interest received from the said Frank Lloyd and Harry Lloyd on the aforesaid sum of Four Thousand Three Hundred Pounds and all other income of the Trust Funds (all of which shall be treated as income and hereinafter referred to as “the income of the Trust Funds”) first in paying satisfying and discharging all costs charges and expenses incurred in connection with these presents or incurred by the Trustees in connection in any way with the execution or purported execution of the trusts of these presents including the payment of interest and other charges payable upon moneys borrowed under any power hereby conferred upon the Trustees and secondly in applying the balance of such income then remaining in each year upon such one or more of the following purposes as they shall (subject as hereinafter mentioned) in their absolute discretion think fit namely:- (a) In paying compensation or retiring allowances or pensions to the Employees or any of them. (b) In making contributions to any sick benefit or other funds now or hereafter established for the benefit of employees or any of them or in them or in making additions to sick pay or paying funeral expenses or expenses occasioned by illness of the Employees. (c) In making annual or other allowances or lump sum payments to the widow and/or children or remoter issue and/or other dependants of any deceased Employee. (d) In making contributions or subscriptions to surgical or convalescent homes hospitals or other like institutions from which the Employees or any of them may receive or expect receive any treatment or other benefits of any kind. (e) In making or paying contributions or subscriptions to clubs or institutions for recreation and general benefit of the Employees or any of them such for instance as towards bands cricket football tennis athletic and other like clubs. (f) In laying out and maintaining recreation grounds for the use of the Employees or any of them. (g) In making any other payments whatsoever which the Trustees consider calculated to benefit all or any of the Employees or to advance their comfort or interests. Provided always that the residue of the income of the Trust Funds not applied to any of the aforesaid purposes in any year may be carried forward and applied in the next or any subsequent year for one or more of the purposes above mentioned and pending such application any sum so carried forward may be invested in any manner authorised by Clause 5 hereof or may be lent to the Company without security.’
[8]All of these purposes, including the laying out and maintenance of recreation grounds can be seen to be for the benefit of ascertainable beneficiaries, who would have the right to invoke the jurisdiction of the court to enforce the declared trusts: see Re Denley’s Trust Deed [1969] 1 Ch 373.[9]The right of the trustees to accumulate, expressly mentioned in the proviso to clause 6, will in practice have expired 21 years after the creation of the trust under the default period of accumulation under Law of Property Act 1925, s.164, as the trust was made before the entry into force of the Perpetuities and Accumulations Act 1964 (replaced now by the Perpetuities and Accumulations Act 2009).[10]As to the discretionary powers of the trustees over the capital of the trust fund, clause 7 provides:
‘7. THE Trustees shall also be entitled in their discretion to realize or raise on security of the Trust Funds any capital sum or sums not exceeding in the whole Ten Thousand Pounds and to apply the same for all or any of the purposes aforesaid.’
[11]The Employees are defined in clause 1 of the trust instrument as “the Employees”, defined as: “any past present and future officers servants and employees of the Company (other than directors and auditors) whether or not they are for the time being still serving the Company and unless expressly otherwise provided shall also include the wives widows sons daughters remoter issues and dependents of any such persons”.[12]The trust period is defined by clause 10, which provides for the settlement to continue until 21 years after the death of the last survivor of the descendants then living of Her late Majesty Queen Victoria. The trustees have ascertained that the last such survivor living in 1914 was Princess Katherine of Greece and Denmark, who died on 2 October 2007, meaning that absent other action the trust would terminate in October 2028.[13]The trustees have power by clause 10(b) (subject to the consent of the settlors or one of the initial trustees during their lifetime) to determine the trust. Clause 11 then provides that:
‘11 ON the determination of the trusts hereof as aforesaid the Trustees shall realize the Trust Funds and apply the same for the following purposes in the following order of priority namely:- (a) In recouping to themselves all costs charges and expenses incurred by them in connection with the execution or purported execution of the trusts thereof and then remaining unpaid. (b) In or towards making any payments agreed to be made out of the capital of the Trust Funds on the determination of the trust under any agreements entered into by the Trustees pursuant hereto such payments subject to any provisions to the contrary contained in such agreements to be made pari passu and rateably. (c) In making to any other employees who at the date of the determination of the trust have for upwards of one year been in receipt of annual payments from the Trustees (whether pursuant to any agreement or not) but who are not under the terms of their agreements (if any) entitled to any payment out of the capital of the Trust Funds on the determination of the trust such payments as are in the opinion of the Trustees a reasonable compensation to them for the cessation of such annual payments and so that the Trustees’ decision as to what payments are reasonable compensation as aforesaid shall be final and conclusive. (d) Any balance then remaining shall be paid over by the Trustees to or otherwise applied by them directly or indirectly for the benefit of all or any of the Employees of the Company in such proportions and in such manner as the Trustees shall in their absolute discretion think fit or in default shall be paid to the said Frank Lloyd and Harry Lloyd their executors administrators or assigns.’
[14]The trustees have thus exercised the powers at clause 10(b) and 11(d) of the trust instrument, to determine the trust period shortly ahead of its natural conclusion in 2028, and to apply the balance of the trust property for the benefit of the beneficiaries by appointing the trust assets to the Fulston Manor Academies Trust.[15]The trust property, so to be appointed, is a clubhouse on Avenue of Remembrance, Sittingbourne, a sports ground and pavilion (together with a bungalow) on Gore Court Road, Sittingbourne, and around £890,000 in cash and investments.

The evidence about the beneficiaries

[16]The minutes of a meeting of the trustees held on 7 August 2025 records the following discussion of the beneficiaries, which as I have noted above are defined in the trust instrument as the “Employees”. Substantially the same explanation has also been provided within the evidence in support of the claim. ‘The Trustees then considered who falls within the class of Beneficiaries (the Beneficiaries). … [T]he Company includes Edward Lloyd Limited and all its successor companies including DS Smith Paper Ltd and so the class of beneficiaries is likely to be very large. The Trustees set out to estimate the number of Beneficiaries. They did so as follows: a) The Trustees do not have data to confirm exactly how many employees the Company has had between 1889 and the present day (2025). They have therefore estimated the total number of employees in the following way: i) In 1912 the Sittingbourne Paper Mill employed approximately 1,200 people (according to “Sittingbourne Mill History”), and, as of 30 April 2024, DS Smith Paper Limited employed approximately 400 people (413 according to the latest accounts on Companies House). The Trustees do not know the exact year-by-year trend, but assuming a steady decline, the average number of employees during the trust period would be 800 ((1,200 + 400)/2). ii) To estimate the number of people employed by the Company between 1889 and 2025, assuming each position turns over every 5 years (based on the median tenure of all salary workers in the UK currently being approximately 5 years), the calculation is (800 x 136)/5. On this basis, the estimated total number of employees of the Company between 1889 and 2025 is 21,760. b) Then to calculate the average number of Beneficiaries per employee: i) Assuming each employee has/had 1 spouse (whilst some employees may have never married, others might be widowed/divorced and re-married. 1 therefore appears to us to be a fair average) and an average of 2 children (an estimate on the lower end of the midpoint between the higher fertility rates in the early to mid-1900’s and the lower fertility rates by the 2000s), per employee, the count is 1 (the employee themselves) + 1 (the employee’s spouse) + 2 (the employee’s children). The Trustees considered therefore that each employee accounts for 4 people in the immediate family to benefit from the Trust. The Trustees note that the definition of Employees in the Trust Deed does not include the husbands of employees. However, the Trustees have concluded that as the children and remoter issue of employees and former employees comprise the vast majority of the beneficial class, this distinction will make a negligible difference to the overall number of Beneficiaries. ii) Therefore, for 21,760 employees, the total count of employees, their spouses and their children is 87,040 (21,760 x 4). iii) This, however, only accounts for two generations (the employee and their children) and the class of beneficiaries includes the employees’ “remoter issues and dependents of any such persons”. Further generations and dependents must therefore be accounted for. Assuming an average of 25-30 years per generation, in a period of 136 years (1889 to 2025), the Trustees assume there has been an additional 5 generations of descendants from the employees at the time the trust was settled to now. Therefore, combining the fact that there are approximately 87,040 beneficiaries purely based on the employee and one generation with the fact that as each generation passes the number of Beneficiaries will increase in a compound manner, the Trustees estimate that there have been over one million Beneficiaries in total. The Trustees have not attempted to estimate an exact figure due to the complications involved with doing so, namely:(a) taking into consideration that the Company used to have more employees and accordingly they would have had more descendants that fall within the beneficial class;(b) the average number of children was much higher in the earlier years of the Trust (it was 3.63 children per woman in 1900). Combining this with (A) dramatically increases the estimated number of Beneficiaries;(c) the fluctuations in the average number of children from 1889 to 2025, for example, there would have been notable lows during the two World Wars and highs with the ‘Baby Boomer’ generation; and(d) difficulties estimating how many of the Beneficiaries have died, especially given the impact of the two World Wars and Spanish Influenza. Accordingly, the Trustees noted that it is impractical, if not impossible, to identify all of the Beneficiaries of the Trust for the purpose of distributing the Trust’s assets. The Trustees noted, however, that it is possible to determine whether somebody is a Beneficiary.’[17]The statement that there are likely to have been over a million beneficiaries in total, i.e. objects of the powers declared by the trust instrument over income and capital by clauses 6 and 7, does prima facie raise the question whether those powers are now administratively unworkable and, if so, what is the effect? It is the workability of the trust which may be an issue, rather than the certainty of its objects. It has been clear since the decision of the House of Lords in McPhail v Doulton [1971] AC 424 that, in the case of both powers in the nature of a discretionary trust and mere powers, it will be valid if it can be said with certainty that any given individual is or is not a member of the class (see at 456, Lord Wilberforce), the so-called “given postulant” test. This is the point adverted to in the final sentence of the section on beneficiaries, above.

The issue

[18]After I had read the evidence and the skeleton arguments for the hearing of the Public Trustee v Cooper application, it seemed to me that the following commentary by the editors of Underhill and Hayton, Law of Trusts and Trustees, 20th edn, at 10.102 and 10.103, was worthy of consideration. It raises a hypothetical scenario with some real similarity to the present case:
‘[10.102] The question of administrative workability or not has to be determined (like the issue of conceptual certainty) as of the date property is effectively subjected to trusts. Are the trusts then valid thereafter or are they inherently voidable in that they may subsequently become void for administrative unworkability? For example, what is the position where: there are initially 1,000 members of a discretionary trust class consisting of (1) issue of X and of X’s spouse and (2) employees or ex-employees or directors or ex-directors of X Ltd or of any company of which the directors for the time being included any director of X Ltd and (3) issue of persons within class (2), and after 70 years (when the trust fund with many X Ltd shares is worth £2 billion) the class consists of about 80 million members, and X Ltd’s directors are on the boards of various multi-national companies as well as of taken-over companies? Harman J and Goff J in Gestetner and Re Denley respectively seem to have assumed that a trust must be certain or administratively workable at any given time. On this basis, subsequent supervening unworkability could invalidate a trust. However, in Muir v IRC the Court of Appeal endorsed the view of Pennycuick J that the possibility of future uncertainty did not make a presently certain trust invalid. [10.103] One may expect that the courts will be reluctant to be driven to find a trust for a large class of beneficiaries such as the settlor’s relatives administratively unworkable when, on its creation, it was possible to find it workable owing to the settlor's clear express or implied criteria for the carrying out of the trusts and when DNA testing was unavailable to reveal the millions of relatives a person has. Perhaps the solution in such a case lies in the trustees advertising for beneficiaries under s 27 of the Trustee Act 1925 or under directions from the court so as to identify a workable number of beneficiaries known to the trustees for the trustees to keep electronic records of them and their issue. Alternatively, assuming a valid workable discretionary trust initially, if the class becomes larger the trustees could take it upon themselves to make a valid sub-settlement or re-settlement on a smaller certain workable class of beneficiaries pursuant to a power in that behalf. Another solution could lie in Lord Wilberforce's dicta in McPhail v Doulton laying down that the court, if called on to execute a discretionary trust, will do so in the manner best calculated to give effect to the settlor's intentions as by authorising or directing representative persons of the classes of beneficiaries to prepare a scheme of distribution or, should the proper basis for distribution appear, by itself directing the trustees so to distribute. This heralds a jurisdiction similar to the cy-près jurisdiction for charitable trusts despite the denials of such jurisdiction by the High Court in Re Astor’s Settlement Trusts and Re Denley’s Trust Deed. So far as concerns persons originally within a certain administratively workable settlement, Hain's Settlement, Re, Tooth v Hain indicates that the settlement cannot subsequently be invalidated because some of the class of beneficiaries may have disappeared or become impossible to find or it has been forgotten who they were.’
[19]Mr Richardson suggested that the issue does not arise in the present case, because what is in issue is the exercise by the trustees of the power at clause 11(d), which is a mere power. There is no reason to suppose that it is not possible to say in relation to any given individual, whether or not they are an object of that power; see [17] above. That does not, however, address the question whether the trust might have become administratively unworkable at an earlier time, the trusts of income and capital at clauses 6 and 7 plainly being powers the exercise of which the trustees must at least consider from time to time (the power over capital being an intermediate power which the trustees are not obliged to exercise).[20]Such trust powers are subject to the requirement that they be administratively workable. This is a separate requirement from the need for trust powers to have certainty of objects, that is that the description of the persons for whose benefit the power may be exercised is sufficiently clear to enable the power to be enforced. In McPhail v Doulton, Lord Wilberforce made the point thus at 457:
‘Two final points: first, as to the question of certainty. I desire to emphasise the distinction clearly made and explained by Lord Upjohn [in Re Gulbenkian’s Settlement] ([1970] AC 508, 524) between linguistic or semantic uncertainty which, if unresolved by the court, renders the gift void, and the difficulty of ascertaining the existence or whereabouts of members of the class, a matter with which the court can appropriately deal on an application for directions. There may be a third case where the meaning of the words used is clear but the definition of beneficiaries is so hopelessly wide as not to form “anything like a class” so that the trust is administratively unworkable or in Lord Eldon's words one that cannot be executed (Morice v. Bishop of Durham, 10 Ves Jr 522, 527). I hesitate to give examples for they may prejudice future cases, but perhaps “all the residents of Greater London” will serve. I do not think that a discretionary trust for “relatives” even of a living person falls within this category.’
[21]In R v District Auditor, ex p West Yorkshire Metropolitan County Council (1986) 26 RVR 24, a trust for ‘any or all or some of the inhabitants of the County of West Yorkshire’ was held to be invalid on this basis. Further, Sir Robert Megarry V-C in Re Hay’s Settlement Trusts [1982] 1 WLR 202 was inclined to the view that an intermediate power (or trust) to pay income ‘to or for the benefit of any person or persons whatsoever or to any charity’, with a small number of persons excluded from benefit, was administratively unworkable. However, he did not need to decide the point as the appointment onto such trusts was void. I consider that if a trust is invalid at inception because it is unworkable, it is necessarily void and not voidable. Just as with a trust lacking certainty of objects, it is incapable of being administered by the trustees or supervised by the court.[22]It seems to me to be almost certainly the case that, by 2025 and probably many decades earlier, the trust powers in the Lloyd Trust had become administratively unworkable in this sense. The summary of the beneficiaries and the difficulties in establishing the likely number of them, set out in the minutes of the trustees’ meeting leading to their decision, exemplify this. There are likely to have been over a million beneficiaries, not all of whom, of course, will still be living. In the West Yorkshire MBC case, Lloyd LJ said that even though it was conceptually certain, ‘[a] trust with as many as 2.5 million potential beneficiaries is, in my judgment, quite simply unworkable. The class is far too large.’ In terms of numbers of objects, the trust in issue in this case may be similar to that in issue in Gibbs v Harding [2008] Ch 235, namely a ‘trust for the black community of Hackney, Haringey, Islington and Tower Hamlets’. Lewison J there noted at [15] that it was common ground that such a trust would have been administratively unworkable and thus void, if it had not been charitable.[23]On the other side of the argument may be cited cases such as Re Baden’s Deed Trusts (No 2) [1973] Ch 9, also concerning a trust for the benefit of employees of a company and their relatives. The Court of Appeal was concerned primarily with the conceptual certainty of the trust, and in particular the use of the word “relatives”, but Sachs LJ said at 20 (whilst confirming that administrative unworkability was not in issue in that claim) that:
‘It was suggested that some difficulty arises from the passage in the speech of Lord Wilberforce in the Baden case [1971] AC 424, 457 where he referred to the need of trustees “to make such a survey of the range of objects or possible beneficiaries as will enable them to carry out their fiduciary duty.” The word “range,” however, in that context has an inbuilt and obvious element of considerable elasticity, and thus provides for an almost infinitely variable range of vision suitable to the particular trust to be considered. In modern trusts of the category now under consideration it may be sufficient to know whether the range of potential postulants runs into respectively dozens, hundreds, thousands, tens of thousands or even hundreds of thousands. I cannot imagine that the above-quoted passage was intended to cast doubt, for instance, on the validity of wide-ranging discretionary trusts such as those of the Army Benevolent Fund.’
[24]This suggests that the mere existence of hundreds of thousands of objects will not by itself invalidate a discretionary trust on the ground of administrative unworkability. In my view, considerations of the likely sheer number of objects of a power or trust fall to be taken into account together with the evidential difficulties in identifying either the identity or the location of objects and surveying them. A trust for a large number of objects with an enduring or immediate connection to an organisation may be workable in a way that would not be workable for a more disparate class. The inability even to estimate an exact figure where there are likely to have been more than a million beneficiaries, the position recognised in the present case, does not seem to me to be readily consistent with administrative workability. It is for that reason that I consider it to be almost certainly the case that the trust has become unworkable.[25]The question then becomes whether the trust may have become void or voidable at some point during the many decades of its existence. The trust was clearly workable at the time when it was established, the beneficiaries then being limited to individuals by reference to employment with a single company, and those related to them or dependent upon them.[26]Mr Richardson relied on the decision of the Court of Appeal in Re Hain’s Settlement [1961] 1 WLR 440 for the proposition that the validity of a trust is determined at the point of its creation, and not later. In that case, a settlor applied for a declaration that a trust he himself had created was void for uncertainty of objects. The trust he had established was for ‘the children and remoter issue of the settlor and the past present or future employees of the settlor’, for the time being in existence. The settlor contended that he could not remember the names of all of his former employees.[27]The Court of Appeal was, unsurprisingly, not persuaded that any evidential difficulty in identifying the full class of beneficiaries caused the trust to fail for lack of certainty of objects. The real question was as to the scope of the trustees’ duties concerning the exercise of their powers in such circumstances.[28]Lord Evershed MR said at 447 that, ‘that the courts have quite plainly been, even in these other cases, reluctant to hold (and if I may say so, naturally reluctant to hold) that a settlement which has been deliberately made is and was from the start invalid for uncertainty’. And, in a passage highlighted by Mr Richardson, also at 447: ‘We have proceeded upon the view that this is a trust and, therefore, no doubt it is true to say that strictly speaking the trustees, in order properly to perform their duty in dealing with the income, unless they choose to accumulate it, should know what the class is. But common sense does come into the matter. It must be quite plain that some members of the class, whose names, at any rate, are known, would not, unless there is something very exceptional about them, be likely objects of the discretion.’.[29]Both substantive judgments made the point that the validity of the trust fell to be determined as at the date when it was made, not at some later date. At 444, Lord Evershed MR said:
‘Proceeding, however, on the view that we are here concerned with a trust [i.e. and not a mere power], the question then arises: is the trust valid? I conceive that if the answer be that it is not, it must be shown that it was invalid at the date of the settlement. Nothing has occurred as a matter of fact, which could translate a valid trust into an invalid trust.’
[30]Then, at 448, Upjohn LJ said this:
‘There is no ambiguity or uncertainty of construction in this case and the sole question is whether, on the facts, the class is incapable of ascertainment. The date on which that matter is to be considered must, it seems to me, quite clearly be the date of the settlement in 1954. If looking at the words the settlor has used in the light of all the relevant facts the beneficiaries are sufficiently defined so as to be capable of ascertainment, the settlement cannot be subsequently invalidated because some of the class may have disappeared or become impossible to find or it has been forgotten who they were.’
[31]All of this was concerned with the question whether a trust has certainty of objects, which is conceptually separate from that of whether it is administratively unworkable although the concepts are close cousins. Invalidity on either ground is predicated on an assessment that the court is not able effectively to control the trust. If a trust could become void through administrative unworkability years after it had been created, there would be no ready way of identifying the point at which it had failed and at which point, in the absence of provisions in the settlement stating what is then to happen to the beneficial interest in the trust property, it will revert to the settlor on resulting trust. This could present grave difficulties to a trustee. There would be similar scope for difficulty if the court were able to declare a trust invalid (or to treat it as voidable) on the basis that it would or might become administratively unworkable at some time in the future. If the court is not astute to find discretionary trusts for the members of a class invalid for uncertainty (Re Hain at 447, citing In re H.J. Ogden [1933] Ch 678), and where that assessment is to be made as at the point of creation of the trust, it seems to me to follow that similar considerations tend to the conclusion that the issue of administrative unworkability falls to be determined conclusively as at the creation of the trust and that a similar reluctance to find invalidity should apply. That is consistent with the authorities I have cited above when administrative unworkability has been considered.[32]This is consistent with other situations in which the court is called upon to determine whether a trust is invalid. When it is alleged that a trust is a sham, because both the settlors and the trustee have a shamming intent, the assessment is to be carried out as at the constitution of the trust. See A v A [2007] 2 FLR 467 at [41]-[44] (Munby J):
‘as a matter of principle, a trust which is not initially a sham cannot subsequently become a sham’
. There is no concept of an ‘emerging sham’: Lewis v Condon [2013] NSWCA 204 at [80]-[81]. The notion of a trust gradually becoming invalid by degrees would create uncertainty, not only for the trustees and beneficiaries, but also for third parties dealing with the trustees.[33]I consider, in my view consistent with what is said by the editors of Underhill and Hayton, that the solution to the problem where it may arise lies with the trustees, who have a duty to survey the range of objects of their trusts and powers as best they are able. Where a trust has become or is at risk of becoming administratively unworkable, the trustees are able to consider the exercise of their powers of appointment or other powers, such as that in the present settlement to bring the trust period to an end and to apply the remaining trust property for the benefit of the beneficiaries. This may enable the trust property to be applied for a workable range of beneficiaries and, as in this case, the supervisory jurisdiction of the court may be invoked in order to obtain the blessing of a momentous decision.[34]Albeit in very different circumstances to those in the present case, in Re Hain’s Settlement, Lord Evershed MR also said this at 447:
‘For practical purposes I should have thought the trustees would not find any embarrassment henceforth, as they do not appear to have found in the past, in properly distributing the income. After all, reverting to the distinction between trusts and powers, cases of this kind are those in which the settlor intends to benefit a class of people, and no one, I would have thought, would have any very great difficulty in fairly and properly making a selection. Certainly in this case the task of the trustees will be assisted by the fact that the settlor is one of the trustees and must have some idea in his mind of the kind of people to whom he would feel an obligation.’
[35]In my view, such considerations are material also where there may be concern about a trust becoming administratively unworkable. Trustees are best placed to form an assessment of whom the settlor will have wished primarily to benefit, which is likely to be of significant importance where the number of beneficiaries is potentially becoming excessive. In the case of a trust to benefit employees and former employees, it may be clear that those with a closer temporal or geographical connection to the place of employment are those who ought primarily to be considered for benefit. Such factors played a role in the decision taken by the trustees in the instant case.

Conclusion

[36]I am satisfied that the Lloyd Trust did not become void on grounds of administrative unworkability at a date after its establishment. Where a trust risks becoming so unworkable (as this trust likely did some time ago), it is for the trustees to take action in order to ensure that the trust property can properly be administered for the benefit of a workable class of beneficiaries.[37]The order giving effect to the court’s approval of the trustees’ decision has already been made.