Benefiting Non-objects With Powers Of Appointment: Squaring The Circle?

Private client practitioners will be familiar with the principle that powers of advancement can be used to create new powers (notwithstanding the rule against delegation) and to benefit non-objects (notwithstanding the rules on excess of power) if it is for the benefit of an object to do so. Powers of advancement are generally thought of as being the statutory power of advancement (as usually extended to the whole share rather than the half) and other powers of trustees "to apply" capital which are expressed to be exercised for the benefit of an object.

The principle that a power of advancement may be used to benefit a non-object if it is for the benefit of an object is often referred to as the "Re Clore" principle¹. Practitioners were reminded of the need to adopt an approach to the principle which was not overly liberal in the judgment of Hart J in the later case of X v A². A similar approach to the word "benefit" has been taken in the context of applications under