The question is a narrow one: whether a trustee who declines to exercise a discretion has, by that declining, exercised it.
1Marguerite Delacroix-Whitfield died in March 2024 leaving a discretionary trust of which Ashgrove Holdings is the sole corporate trustee. The class of beneficiaries is wide and includes two grandchildren who were minors at the date of death.
2Between May 2024 and January 2026 the trustee made no distribution of any kind. It did not refuse a request; no request was made. It held four meetings, minuted in each case that distribution had been considered and that no distribution would be made at that time.
3The appellants say that a settled pattern of considering and declining amounts to a decision, and that a decision may be reviewed. The trustee says that a discretion not exercised produces nothing to review.1
4We prefer the appellants' formulation, though not for the reason they advance. The relevant act is not the declining. It is the deliberating.2