Terra Firma’s Fergus Colquhoun successfully represented the judicial factor on the estate of the Old Waughton Discretionary Trust, in an application for special powers to sell the trust assets and wind it up. The judicial factor was originally appointed in 2019, after relations between the original trustees broke down, and negotiation between them to appoint new trustees were unsuccessful. The trust was established in the will of the late Ian Wilson, and holds Old Waughton Farm in East Lothian, with the trust assets to be administered to the benefit of Mrs Wilson or any other individual, or charitable or educational organisation, selected by the trustees. Mr Wilson also signed a letter of wishes, expressing the desire that his wife should be financially provided for out of the trust, and that the farm should be made available to a young person interested in farming, or a suitable charitable institution.
The judicial factor managed the trust assets for a number of years and eventually identified a person whom he considered suitable to take on the farm. He decided that the most appropriate course of action, in view of the desires expressed in the letter of wishes, was for him to sell the farm to the person identified, and then to distribute the sale proceeds to Mr Wilson's wife. The trustees had been unable to agree on the selection of any charitable beneficiaries before the relationship between them broke down, so Mrs Wilson was the only potential beneficiary of the trust. The judicial factor took the view that the trustees were very unlikely to reconcile, and that it would not be desirable to wait any longer for them to agree on any alternative course of action.
Fellow TFC member Roddy Macleod acted for one of the two former trustees, in opposing the application. He argued that the proposals fell foul of Mr Wilson’s wishes. The candidate found was not a young farmer, as Mr Wilson had suggested, and the appointment of Mrs Wilson as the trust’s sole beneficiary would give rise to a result arguably more generous than the “suitable financial provision” her late husband had envisaged. It remained possible to administer the trust estate in line with Mr Wilson’s wishes, and the court ought instead to appoint a new trustee.
Lord Richardson, in granting the judicial factor the powers which he had sought, noted that the question was whether the factor's proposal was expedient, rather than necessary. In view of the continuing deadlock between the trustees, Lord Richardson accepted that the factor's approach was a sensible one in the circumstances. He concluded that the sale of the farm, and distribution to Mrs Wilson, was expedient, and that it accorded with the desires expressed by the deceased in his letter of wishes. He was not convinced that the alternative course of action proposed by the respondent had any real chance of success.
Lord Richardson concluded by observing that: “The course of action proposed by the noter broadly achieves the purposes for which the trust was established. As Mr Wilson wished, suitable financial provision for Mrs Wilson will be ensured and Old Waughton will continue to be farmed as a single unit in the hands of an individual with an interest in farming. Bearing in mind the prolonged and continuing deadlock between the trustees, the noter’s course of action appears highly expedient. Based on the evidence I have heard, there appears not to be any reasonable or realistic alternative. In my opinion, taking no action and simply allowing the trust estate gradually to diminish under the continuing burden of funding the judicial factory would not be a reasonable course of action. I am also not persuaded that the respondent’s suggestion of proceedings being brought seeking the appointment of a further trustee is either reasonable or realistic.”
The full judgement can be viewed by following this link: Alexander Lamb for Special Powers [2026] CSOH 73
