ABSTRACT

In Mettoy Pensions Trustees Ltd v Evans, the High Court created a third type of power, namely, ‘a fiduciary power in the full sense’. This is a power that cannot be released by the trustees. The courts will not compel the trustees to exercise their discretion, for the gift remains a fiduciary power and is not treated as a trust. But if the trustees fail to exercise the power, the court may adopt a scheme that has the effect of exercising the power in accordance with the aims of the gift and the surrounding circumstances. This unique type of power is exercisable in respect of pension funds.