Shannan v Viavi Solutions UK Ltd [2016] EWHC 1530 (Ch) is a recent decision covering a number of points on powers generally and on powers of amendment in particular. Amongst them:
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No particular formality is required for the exercise of a power (statute apart) unless the trust instrument expressly or impliedly so requires; and the test for implying a requirement is the tough one of necessity [60].
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Retrospective amendment is authorised, where the power of amendment is in suitable terms; remedying a previously invalid exercise of a power is permissible but altering accrued rights is not (though surely an express power to do so would be effective), nor is nullifying what was effective when done or validating a breach of trust ([63]-[68]).
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There is a discussion of the ability to sever the valid from the invalid parts of an exercise of the power ([74]-[75]).
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Exercising a power incidentally, by doing something which can work only if the power is exercised or by reciting a previous invalid exercise, is also discussed, referring to Davis v Richards and Wallington Industries Ltd in the first case and Re Shinorvic in Jersey in the second ([97] et seq. and [113] et seq.).
Nicholas Le Poidevin, Q.C.
New Square Chambers