In Cator & Ors v Thynn, Marquess of Bath & Anor [2026] EWHC 1045 (Ch), the court approved a significant exercise of a power of advancement on the basis that it would deliver meaningful moral, emotional and familial benefit to the life tenant – not merely financial gain.
For families with trust structures in place, this decision carries important practical lessons. It also raises a question worth asking of your own arrangements: are your trusts flexible enough to reflect what your family actually needs?
Background: The Longleat Family Trusts
The case involved the historic family settlements connected with the Longleat Estate and the Marquess of Bath. The First Defendant, Ceawlin Thynn (the current Marquess of Bath) was the life tenant of the relevant settlement.
Lord Bath has two sons.
- His elder son, John, was born naturally to Lady Bath and unquestionably falls within the class of beneficiaries under the family trusts.
- His younger son, Henry, is genetically the child of Lord and Lady Bath but was born through a surrogate mother in the United States.
The complication arose because the trust instruments contained an unusual drafting provision: all expressions describing family relationships – “child”, “issue”, “grandchild” – were to be construed in accordance with the general law as it stood before 1970. Under that older legal framework, there was real doubt as to whether Henry would qualify as Lord Bath’s “son” for the purposes of the trusts. The trustees had been advised that Henry might be excluded from the beneficiary class entirely.
The trustees considered this plainly unfair. Henry is, in every meaningful sense, Lord and Lady Bath’s child. They therefore proposed to use their power of advancement, which is a tool available under the trust deed, to create new trust arrangements that would give Lord Bath a personal power to add Henry and his descendants as beneficiaries at a later stage.
Because the decision was, in the court’s words, “momentous”, the trustees sought the court’s blessing under the Public Trustee v Cooper jurisdiction before proceeding.
The Central Question: Was This “For the Benefit” of Lord Bath?
A power of advancement can only be exercised for the benefit of the life tenant – in this case, Lord Bath himself. The legal question at the heart of the case was therefore: in what sense does giving Lord Bath a power to include his own son in the family trusts benefit Lord Bath?
The opposing argument, put by counsel for the representative defendant, was essentially this: the real purpose was to benefit Henry, and not Lord Bath at all. On that analysis, using the power of advancement in this way would be an improper exercise, or in older language, a “fraud on the power.”
HHJ Paul Matthews rejected that argument. His reasoning is worth examining in some detail, because it reflects a sophisticated and practically important understanding of what benefit means in the context of family trusts.
How the Court Interpreted “Benefit”
1. Financial benefit – but not the whole story
The judge found a clear material benefit to Lord Bath: if Henry were included in the family trusts, Lord Bath would not need to make the same level of personal provision for Henry out of his own resources. The trusts would provide where they otherwise could not. That is a concrete financial advantage.
But the court made clear that financial benefit was only part of the picture.
2. Moral and familial benefit
The judge drew on a line of established authority, including:
- Re Halsted’s Will Trusts [1937]
- Pilkington v IRC [1964]
- Re Remnant’s Settlement Trusts [1970], and;
- Holden-Hindley v Holden-Hindley [2013]
He confirmed that “benefit” in the context of powers of advancement is interpreted broadly and encompasses:
- Financial or material improvement
- Moral obligations and their discharge
- Emotional and psychological wellbeing
- Familial fairness and the avoidance of inequality between children
The judge stated plainly:
“I have no doubt that it is for the first defendant’s benefit that a power should be conferred upon him … to include his second son in the class of objects of the family trusts.”
He reasoned that the moral and emotional dimension here was substantial. Both of Lord Bath’s sons are his genetic children. To treat one categorically differently from the other – not because of anything either child had done, but because of the mechanics of how he was brought into the world – was a source of real and legitimate concern for Lord Bath as a father. Addressing that concern, by giving Lord Bath the ability to put his children on a more equal footing, was itself a benefit.
The judge also noted something important: it was not just about provision for Henry. It was about preventing “avoidable inequalities of treatment between children” causing difficulties in their relationships as they grow up. The wellbeing of the family unit, and the father’s role within it, formed part of the court’s analysis.
3. The benefit of knowing, not just receiving
One of the more nuanced aspects of the judgment is the court’s recognition that the benefit to Lord Bath did not depend on him ever seeing a penny as a result of the exercise. It was enough that he knew Henry could be included in the trusts at a future point. As the judge put it:
“A considerable part of the benefit to the first defendant is knowing that Henry is one of the beneficiaries who may benefit in future.”
This is a meaningful expansion of how courts think about benefit in this context. You do not need to be able to point to a cheque. A father knowing that his son is protected (or at least capable of being protected) is itself a form of benefit that the law recognises.
Why This Case Matters Beyond Surrogacy
It would be easy to read this as a case purely about surrogacy and modern family arrangements. The surrogacy element was, of course, what gave rise to the problem – and the court’s treatment of it is significant in its own right.
But the real significance of the judgment lies in its reaffirmation and extension of the broad interpretation of “benefit” under powers of advancement.
This matters in a wide range of circumstances where families with trust structures face situations the original draftsman did not anticipate.
Consider:
- A beneficiary with an estranged child who was excluded from the original trust class. Could an advancement to the parent – on the basis that it would allow them to make provision for that child and alleviate the moral burden of their exclusion – be justified on the Cator v Thynn reasoning? The case suggests it could, where a genuine moral obligation and emotional distress are present.
- A life tenant who is otherwise unable to provide for a dependent family member outside the trust class. The Halsted and Holden-Hindley cases already supported this analysis, and Cator v Thynn reinforces it.
- Situations where beneficiaries wish to use an advancement not to enrich themselves directly, but to resolve a familial inequity – such as providing for a step-child, a child born outside marriage, or a child whose legal relationship to the life tenant is uncertain.
In all of these scenarios, advisers and trustees now have stronger authority for the proposition that the moral and familial dimension of benefit is legitimate and capable of grounding an exercise of a power of advancement.
The “Fraud on a Power” Question
The court also considered the argument that using the power of advancement in this way was an improper purpose, equivalent to a “fraud on the power.”
The argument ran that the true purpose was to benefit Henry (who was outside the class), rather than Lord Bath. The judge disposed of this swiftly by reference to Halsted and Holden-Hindley: in both of those cases, the advancement was designed to benefit people outside the class, yet no-one suggested the purpose was improper.
That is because in each case the benefit to the outside party was the mechanism through which benefit was conferred on the object of the power. It was Lord Bath’s benefit – the ability to place his son in the class, and the relief of moral and financial pressure that came with it – that justified the exercise.
What This Means for Your Trust Planning
If you have a trust in place (or are considering establishing one), the Cator v Thynn decision is a useful reminder of several important points:
1. Trust Drafting Should Reflect Modern Realities
The Longleat trusts contained a drafting provision that tied the definition of family relationships to the law as it stood before 1970. That provision created a real and costly problem. Modern trust drafting should, wherever possible, use flexible definitions that can accommodate changes in family structure, legislation, and family formation, including non-traditional routes to parenthood.
2. Powers of Advancement Are Powerful Flexibility Tools
A well-drafted power of advancement gives trustees genuine flexibility to respond to changing circumstances in ways the original settlement could not anticipate. The court in Cator v Thynn showed itself willing to support trustees in using that flexibility where the reasoning is sound and the benefit genuine.
3. “Benefit” Is Not Just About Money
This is perhaps the most important takeaway for families with trust structures. The law does not require trustees to think only in financial terms when considering whether an exercise of power is beneficial. Moral obligations, familial fairness, emotional wellbeing, and the relationships between family members are all legitimate considerations, and courts will recognise them as such.
4. Seek Specialist Advice Before Exercising Significant Powers
The trustees in Cator v Thynn did the right thing: faced with a momentous decision, they sought the court’s blessing rather than proceeding unilaterally. For trustees and beneficiaries facing significant decisions under existing trusts, taking specialist legal advice (and where necessary seeking court approval) is the appropriate course.
How Jones Whyte Can Help
Whether you are establishing a new trust, reviewing an existing structure, or facing a specific issue within a family trust, our Estate Planning team specialises in trust planning and can advise you at every stage.
We advise on:
- Trust Planning – structuring trusts that are flexible, tax-efficient and built to last across generations
- Inheritance Tax Planning – ensuring your estate passes to the people you intend, in the most tax-effective way possible
- Will Writing – reflecting your wishes with precision and providing the legal framework your family needs
- Power of Attorney – protecting your interests and those of your family if you are no longer able to manage your own affairs
If you have a trust structure in place and are concerned about whether it remains fit for purpose – or if a situation has arisen that the original drafting did not anticipate – we would be very glad to hear from you.
Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
