A written agreement between beneficiaries altering their respective entitlements under a trust can operate as a defence of consent to what would otherwise be breaches of trust by the trustee in making unequal distributions, even where the agreement does not formally vary the trust deed. The defence of consent need not be explicitly pleaded where the underlying facts are the same as those supporting an estoppel defence and the issues were fully litigated. The BP Refinery implied term test was not satisfied where the contract was effective without the proposed term and the term was not obvious in the commercial context.
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