“Missing” Deeds of Variation

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There are number of obvious “gaps” in the continuity of the provisions in the instruments that purport to form the “governing rules” of the occupational pension trust established on the 23 December 1913.

An obvious continuity problem exists with respect to the Power of Amendment.

The original Trust Deed made on the 23 December 1913 provided the Power of Amendment to the natural person Directors of the sponsoring Employer in Regulation 28.A Power of Consent was also provided to the natural person Trustees.

Regulation 28 was renumbered to Regulation 44 and then to Regulation 50, however there was not change as to who held the relevant powers.

However a purported Rule 1.9.1 appears in a purported “Resolution” dated 20 November 1982, where the holder of the power of amendment is purported to the the natural person Trustees, subject to the consent of the Directors of the sponsoring Employer.

The a purported Rule 1.13.1 appears in a purported Deed of Variation dated 26 August 1986, where the holder of the power is purported to be a sole corporate trustee, subject to the consent of the legal person, being the sponsoring employer.

These purported changes are summarised on the following diagram.

Power of Amendment History

Putting to one side whether it is possible to amend the Power of Amendment in such a manner by the exercise of that power {as opposed to seeking an court order or an Act of Parliament to amend the Power of Amendment} there needs to be a chain of Deeds of Variation {or other instrument of Variation} to repeal one provision and to add a replacement provision.

There need to be instruments of variation that:

  • (i) Repeals Regulation 50 and then adds purported Rule 1.9.1
  • (ii) Repeals purported Rule 1.9.1 and then adds purported Rule 1.13.1
  • The instrument that repeals Regulation 50 must itself comply with the conditions and restrictions imposed by Regulation 50.

    That is the instrument must be a Deed and be executed by a majority of the Directors along with a majority of the natural person trustees.

    The instrument that purports to repeal Rule 1.9.1 must itself comply with the conditions and restriction imposed by purported Rule 1.9.1.

    The last Deed of Variation that recited Regulation 50 and complied with its provisions is dated 15 February 1977. Therefore another Deed of Variation complying with the provisions of Regulation 50 dated between 15 February 1977 and 20 December 1982 would be required to repeal Regulation 50 and to add purported Rule 1.9.1 to the provisions of the terms of the trust established on the 23 December 1913.

    The is no evidence that any such executed documents exists and the purported Trustee has been unable to produce any such purported Deed of Variation.

    The purported “Resolution” dated 20 December 1982 recites the purported Rule 1.9.1 as the Power of Amendment, while the purported Deed of Variation dated 26 August 1986 relies on purported Rule 1.13.1. Therefore there must be an amending instrument that complies with the provisions of Rule 1.9.1 that repeals Rule 1.9.1 and adds purported Rule 1.13.1. Again their is no evidence that such an amending instrument exists and the purported Trustee has not been able to produce any such purported amending instrument.

    Pro forma outlines of the “missing” Instruments of Variation are shown as follows.

      Missing Deeds of Variation #1   Missing Deeds of Variation #2   Missing Deeds of Variation #3
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    This tab updated on 15 March 2015