Cator v Thynn: The Meaning Of “benefit”

Judgment has been handed down in the widely reported case of Cator v Thynn [2026] EWHC 1045 (Ch). 

This involved an application by the trustees of three family trusts of the Longleat Estate as to whether they should give the 8th Marquess of Bath (the life tenant) the power to add his son, Henry, as a beneficiary of the trusts. This would solve the issue that Henry, having been born via surrogacy in the U.S.A., did not otherwise qualify as a beneficiary.

The case considers two fundamental issues of interest and relevance to trusts (both old and new) and practitioners:

• whether the exercise of the trustees’ power would be of “benefit” to the 8th Marquess; and
• the use of terminology such as “child” and “issue” in trust documentation. 

We discuss the case and its impact on trusts and trustees further below.

Background 

A claim was brought by the trustees of three family trusts of the Longleat Estate for court approval under the Public Trustee v Cooper jurisdiction. This allows trustees to seek court approval – often referred to as a ‘blessing’ – before making “momentous decisions”, to protect themselves from future breach of trust claims. The first and second categories of the Public Trustee v Cooper jurisdiction were relevant, being: 

• whether a proposed action is within the trustees’ powers; and
• whether a proposed course of action is a proper exercise of the trustees’ powers, where there is no particular doubt as to the nature of the trustees’ powers and the trustees have decided how they wish to exercise them, but where the decision is particularly momentous. ¹

Here, the trustees proposed to exercise their power of advancement for the benefit of the 8th Marquess of Bath, to give the Marquess the power to add his second son, Henry, to the class of objects of the trusts.

This was because Henry, while genetically the son of the Marquess and his wife, was born via surrogacy (in the U.S.A.) and the family trusts expressly retain the pre-1970 common law meanings of terms such as ‘child’, ‘grandchild’ and ‘issue’. Therefore, there was some uncertainty as to whether Henry was within the beneficial class of the family trusts.

The reason the trustees sought to confer on the Marquess a power to add Henry in due course, rather than the trustees simply adding Henry straightaway, was that Henry was born via a surrogate mother in the U.S.A. and so was a U.S. citizen by birth and therefore a ‘U.S. person’ for U.S. tax purposes. The plan was for the power to add Henry to the trusts’ class of objects only to be exercised once U.S. tax advice had been taken.

The surrogacy issue

While much of the wider public interest in and reporting of this case focused on the surrogacy issue itself, Henry was not a party to the proceedings and the trustee claimants did not ask the court to determine whether Henry was included within the trusts’ beneficial class or not. 

HHJ Paul Matthews notes in his judgment:

“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 Marquess] so as to confer upon him a power in effect to add Henry to the class of objects of the trusts.” ²

(emphasis as it appears in the judgment)

While the point remains undecided following this judgment, the commentary above will be relevant where similar issues arise in the context of older trusts and with surrogacy and other fertility treatments becoming increasingly widespread. The position is likely to vary between jurisdictions, so for trusts governed by laws other than the laws of England and Wales, local advice will be required. This may also involve questions of private international law, given the internationally mobile nature of modern families and because such issues are typically governed by the law of personal status.

For further discussion of the meaning of terms such as “children” in trust documentation more generally, please see our previous article. 

The meaning of “benefit”

The main focus of the judgment is whether the trustees have the power to make the proposed advancement and specifically whether the proposed advancement would be for the Marquess’s benefit. 

In the judgment, HHJ Matthews notes that:

“In this context, the term “benefit” is construed widely”, ³

and proceeds to run through a long line of cases which consider the meaning of “benefit” and how widely it can be interpreted, particularly whether “benefit” must include some financial or material benefit, even where it also involves a degree of moral or other non-financial benefit. 

Applying the previous authorities to the circumstances in this case, HHJ Matthews found that: 

“For my part I am satisfied that [the Marquess] 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.” ⁴

In other words, the Marquess will materially benefit from the proposed exercise of the power because his moral obligation to provide for his son Henry will not need to be satisfied purely out of his own resources; Henry will instead be capable of being provided for out of the resources of the family trusts. 

On the subject of whether “benefit” can include moral and other non-financial forms of benefit, HHJ Matthews notes as follows:

“…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 constitute a 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.” ⁵

(emphasis as it appears in the judgment)

The above, being from a decision of the High Court (which courts of the same or higher levels are not (strictly) obliged to follow), does not officially alter the status quo in England and Wales; but it serves as a helpful summary of the current position: 

• “benefit” can include non-financial benefits, but they will be more difficult to assess than material or financial benefits; and
• while there is no strict requirement that the object of a power recognises a moral obligation in order for non-material benefits to be taken into account, a lack of moral obligation will make the assessment of non-financial benefits even more difficult.

Improper purpose?

In his judgment, HHJ Matthews briefly considers whether the proposed exercise of the power of advancement would be void as being for an improper purpose, an argument put forward by counsel for various beneficiaries of the trusts who would or might be prejudiced by the trustees’ proposed exercise of the power of advancement.

The argument ran that the real purpose of the trustees’ proposed exercise of the power was to confer a benefit on Henry, who was not a beneficiary of the trusts in question. HHJ Matthews rejected this argument and found that “the adding of Henry to the class…is the benefit to [the Marquess], both materially and morally.” ⁶

Referring to the fact that the Marquess would be given the power to add Henry as an object of the trusts rather than Henry being added by the trustees directly (for U.S. tax reasons), HHJ Matthews notes that:

“if [the adding of Henry to the beneficial class] is the benefit to [the Marquess], 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.” ⁷

Although the proper purpose doctrine was considered only briefly in this case, it remains an important factor for trustees and other fiduciaries to consider in relation to the exercise of their powers, especially given the relatively recent and authoritative Privy Council judgment of Grand View Private Trust Co Ltd v Wong [2022] UKPC 47, which considered the proper purpose doctrine in detail (for further detail, see our article). 

Public Trustee v Cooper - category two 

Having established that the trustees had the power to do what they propose for the reasons set out above, HHJ Matthews dealt with the Public Trustee v Cooper category two aspect of the trustees’ claim in a straightforward manner. ⁸

The three questions for the court to consider in Public Trustee v Cooper category two “blessing” applications (which are cited in the judgment as they appear in the leading practitioner textbook, Lewin on Trusts) are as follows:

1. Have the trustees in fact formed the opinion that they should act in the way for which they seek approval?
2. Is the opinion of the trustees one which a reasonable body of trustees could properly have arrived at? This in turn can be split into two sub-questions:
   1. have the trustees properly taken into account relevant considerations and not taken into account irrelevant considerations; and
   2. is the decision one which a rational trustee could have reached?
3. Is the opinion vitiated by any conflict of interest? ⁹

HHJ Matthews had no difficulty answering these questions in favour of the trustees, such that court approval for the trustees’ proposed exercise of the power was granted.

The impact of Denaxe

Perhaps of greater interest in relation to the Public Trustee v Cooper category two jurisdiction is HHJ Matthews’ earlier judgment in this case from February 2026 in response to an application by the claimant trustees to join (as a second defendant) an individual to represent the interests of beneficiaries who would or might be prejudiced by the trustees’ proposed exercise of the power of advancement. 

This application seems to have been made as a direct result of the decision in Denaxe Ltd v Cooper [2024] CH65, a case relating to the proposed sale of Blackpool Football Club by receivers, in which the Court of Appeal found that any immunity (i.e. the protection for a fiduciary from being challenged at a later date on their acting in a way as sanctioned by the court) which derives from a fiduciary’s successful application for court approval is broadly explained by:

• issue estoppel - that the same parties cannot relitigate issues which have been definitively decided in previous proceedings; and/or
• the related concept of Henderson v Henderson abuse of process - that a party to proceedings cannot subsequently bring further claims or arguments that could and should have been dealt with in those earlier proceedings.

This finding went against previous orthodoxy in the trust context, which suggested that immunity from a successful court approval application derives broadly from the court’s approval in and of itself. 

As part of the judgment for this earlier application, HHJ Matthews took the opportunity to set out a detailed history of the court “blessing” jurisdiction and to consider the impact of the Court of Appeal’s decision in Denaxe in a trust context. He made clear that “Notwithstanding that Denaxe was not a case of trustees seeking approval of a “momentous” decision, it is clear that the members of the court intended their decision to apply just as much to them as to other office-holders”. 

Ultimately, HHJ Matthews found no previous authority supporting the proposition that trustees’ immunity from a court blessing derives from issue estoppel or Henderson v Henderson abuse of process. He concluded that “[t]he impact of the decision in Denaxe on the practice for trustees’ applications for approval is uncertain”. Nevertheless, Denaxe carries several potential implications for trusts and trustees, some of which the judge referred to in his earlier judgment:

1. as in this case, it is likely that applications for issue-based representation orders, to ensure that the interests of beneficiaries who are not joined to proceedings are appropriately represented, will increase;
2. equally it may no longer be worthwhile for “blessing” applications to be made without a defendant, as otherwise there can be no issue estoppel; and trustees who have previously considered themselves immune from certain claims having obtained court approval without a defendant may in fact be exposed to those claims which they could not defend on the basis of issue estoppel or abuse of process;
3. it follows from the decision in Denaxe that there is no obvious need for trustees to give full and frank disclosure to the court if any immunity in fact derives from issue estoppel or abuse of process and not from the court’s approval per se. In short, if parties can now advocate for their own interests, seek disclosure and test evidence, it is difficult to see why trustees must also provide everything unilaterally; and
4. it will be more difficult for the court to deal with these sorts of applications quickly because there will always be a need to join at least one defendant who will in turn need an opportunity to file evidence and make oral submissions. As a result, trustees will have to balance the risk of not obtaining immunity against the cost and delay associated with joining all interested parties ¹⁰ and it may be that in some instances trustees will not make applications in the first place because the decision in question needs to be taken more quickly than the court can deal with the application. ¹¹

The above reflects the position in England and Wales. HHJ Matthews acknowledged that with Cator v Thynn being a High Court case, Denaxe remains binding authority unless and until a superior court revisits the issue. Nevertheless, his detailed critique of Denaxe stands as a firm recognition of the traditional view of trustee immunity in blessing applications, and it may well be that “offshore” jurisdictions decline to follow the Court of Appeal’s decision in Denaxe ¹². That said, given that interested parties being represented and joined to proceedings is often the recommended approach in any event, it may be that in practice the impact of Denaxe in relation to category two Public Trustee v Cooper applications is not so significant. 

Conclusion

While the substantive judgment in this case regarding the outcome of the trustees’ Public Trustee v Cooper category two application did not contain any particularly novel or unusual points, HHJ Matthews’ earlier judgment will be something to consider for any fiduciaries and their advisers contemplating an application for court approval. 

In terms of the meaning of “benefit” in the context of trust law, this judgment serves as a useful summary of the current position in England and Wales, particularly in relation to non-financial benefits. While the specific facts of this case are fairly unusual (albeit similar issues which derive from the interaction between the increasing prevalence of modern fertility treatments and historic legal definitions have appeared in other cases and are likely to continue to do so), the question of how widely “benefit” can be construed arises in a variety of different trust law contexts. 

For example, a recent discussion paper of the Trust Law Committee ¹³ (published just prior to this judgment) examined trustees’ ability to pursue ethical investment strategies, which in part turns on whether moral or other non-financial considerations can be said to constitute a benefit for the beneficiaries, and if so, under what circumstances.

As noted in that discussion paper, “offshore” jurisdictions have been more readily inclined to adopt an expansive notion of benefit: for example, a recently published decision of the Royal Court of Guernsey – In the matter of the X trusts ¹⁴ - found that a trust protector’s decision to replace Guernsey resident trustees with UK resident trustees, so as to make the trusts in question UK tax resident, was for the benefit of the beneficiaries, who all felt strongly that their family trusts should contribute their fair share to the society in which all the adult beneficiaries live and were brought up.

The court found that the benefit was present notwithstanding the significant financial detriment the trust funds would suffer as a result of the trustees becoming subject to UK tax on an arising basis. It may be that this is another area where the position in “offshore” jurisdictions develops beyond the position in England and Wales.

Footnotes

1. Paragraph 3 of the judgment

2. Paragraphs 6 and 7 of the judgment

3. Paragraph 14 of the judgment

4. Paragraph 31 of the judgment

5. Paragraph 33 of the judgment

6. Paragraph 35 of the judgment

7. Paragraph 37 of the judgment

8. Paragraphs 38 to 45 of the judgment

9. Paragraph 40 of the judgment and Lewin on Trusts, 20th edition, 2022, 39-095

10. See for example Wythe v Zavos [2024] EWHC 2784 (Ch).

11. Paragraphs 43 to 46 of HHJ Matthews’ February 2026 judgment in Cator v Thynn

12. Many offshore jurisdictions provide a statutory basis for trustees not to join all parties to blessing applications e.g. Jersey, Guernsey, Cayman etc.

13. Private Trustees and Ethical Investment, Trust Law Committee Discussion Document, May 2026, Sinéad Agnew, Robin Vos and John Clapham

14. In the matter of the X trusts [2026] GRC034

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