Discretionary Trust

chrisa_3

My parents set up a discretionary trust in 2004. My father died in 2008. At that point after my mother's death the estate was to be divided 20% to my brother and myself and 15% to each of the 4 grandchildren. In 2012 she changed her statement of wishes to ask that 10% be given to my brother and myself and 20% to the grandchildren. After years of mental abuse from my brother and his wife she changed again in 2017 and left £1000 to my brother and 20% to the rest of us.
When my brother found out he sent a threatening letter to my mother about what he would do if she left him out but she stood firm. She died in Sep 2020 and the solicitors have decided to ignore her final request and revert back to the original percentages. Is there anything I can do ?

Keep_pedalling

Statements of wishes have no legal standing, as the name suggests they are just wishes and not enforceable. 

What assets does the DT hold? Did your mother also have a will in place for assets she still held in her own name?

SeniorSam

The solicitors are proceeding with the original terms and wording of the Discretionary Trust and as a Trustee this is correct. As mentioned, letters of wishes do not have any legal standing and if the Trustees did not follow the original terms of the Trust, they could be responsible.

The main point here is, how many Trustees were actually appointed?

chrisa_3

Many Thanks . I thought that was probably the case but I wondered that as the trust had only been activated for 4 years before my father died and then a further 16 before mum died if her wishes should be considered 
Also the letter which threatened the consequences should she cut my brother out I thought would have a bearing on the decision as with a will you cannot bring undue influence on anyone which is what that letter tried to do. There are 2 trustees and unfortunately have been lots of errors by them. I have posted them elsewhere on this site and the solicitors themselves have acknowledged that my complaints are justified. Having lost confidence in them I just needed to check their decision was correct.

Savvy_Sue

chrisa_3 said:

Also the letter which threatened the consequences should she cut my brother out I thought would have a bearing on the decision as with a will you cannot bring undue influence on anyone which is what that letter tried to do.  

Well, IF she'd changed the will in his favour as a result of that letter, then it might have had some bearing, had you decided to challenge it, but if the will remained unchanged you have no challenge.

SeniorSam

Both Trustees need to agree on whatever action is taken unless one of them has given the solicitor the authority to act.  Either way, the Trustees can be held fully liable if they do not act in accordance with the instructions of the Settlor and in the best interest of the beneficiaries, which is probably why the solicitor is taking what appears to be the correct action.

theoretica

Have you read the deed which set up the trust, and what exactly does it say about varying the final distribution?

securityguy

chrisa_3 said:

My parents set up a discretionary trust in 2004. 

What was the purpose, and who are the trustees?  Most of the historic reasons for these trusts (which were sold heavily, and far more than any purpose could ever have justified) rely on the money no longer being the settlors, so that it fell out of their estate.  In many cases, if the settlors retained the ability to, as is claimed here, vary the terms of trhe trust then the money would no longer fall outside their estate for other purposes (in other words, you can't both settle money on a trust so that it is no longer yours _and_ continue to dictate how that trust is run as thought the money is yours).

SeniorSam

You say that there were two Trustees appointed and obviously one is the solicitor.
Who is the second Trustee?

chrisa_3

Many thanks for taking the time to reply to my questions. The other trustee is now a consultant for the partnership and he appears to be the one making the decisions. Unfortunately he is the one I have had to complain about as when I looked at the trust accounts there were mistakes in them. He had been responsible and charging the trust for the last 7years and none had been spotted until I looked. It appears that he wrote to my brother saying he was going to ignore my mother's statement of wishes although he has not contacted any of the other beneficiaries. When I spoke to the solicitor he had no idea that this had happened. To make matters worse I had to apply for power of attorney to sell my mother's property the accounts have just been sent to me and there is another error in them. How can we trust these people!