Discretionary Trust Will Advice

E5tw
E5tw Posts: 16 Forumite
edited 4 November 2018 at 12:36PM in Deaths, funerals & probate
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  • Browntoa
    Browntoa Posts: 49,299 Forumite
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    Age of person making the will ?

    Can be challenged as deprivation of assets under certain circumstances if it's done purely to dodge potential care home fees
    Ex forum ambassador

    Long term forum member
  • Yorkshireman99
    Yorkshireman99 Posts: 5,470 Forumite
    edited 13 May 2018 at 7:23PM
    E5tw wrote: »
    Hi,

    So looking for some advice on a Discretionary Trust Will, the main asset is a freehold property with no debts.

    Specifically the Grandson whom is one of two beneficiaries alongside with the only surviving trustee (the Father).

    The document states the following;

    50% to the trustee (father) absolutely
    50% to the trust UPON TRUST to the Grandson if he reaches age 35 absolutely BUT if he fails to attain a vested interest for such or his children as survive him and if more than one in equal shares absolutely. This probably mean the house being sold. The Trustees need to get paid for professional advice on the tax implicatpions.


    What rights does the grandson have as the only NON trustee beneficiary? Are they entitled to income of trust as it!!!8217;s not specified either way. Otherwise, are they entitled to occupy the property without taking ownership?

    Thanks, E
    Regardless of what the will or trust deed says the full amount is payable when the grandson is 18. This is a very well established principle of English that has been discussedseveral times in this forum.there are no get outs or loopholes!
  • Brynsam
    Brynsam Posts: 3,643 Forumite
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    Yorkshireman99 wrote: »
    Regardless of what the will or trust deed says the full amount is payable when the grandson is 18. This is a very well established principle of English that has been discussedseveral times in this forum.there are no get outs or loopholes!

    Not an accurate statement of the position. It has indeed been discussed but not always correctly. See https://www.blakemorgan.co.uk/training-knowledge/guides/client-guide-use-discretionary-trusts/ and https://hullandhull.com/2018/01/saunders-v-vautier-mean/

    Can also speak from personal experience - I am a beneficiary under a discretionary trust in my late grandfather's will and am well beyond the age of 18, but can't access the loot for some time yet!
  • Yorkshireman99
    Yorkshireman99 Posts: 5,470 Forumite
    edited 14 May 2018 at 7:21AM
    Brynsam wrote: »
    Not an accurate statement of the position. It has indeed been discussed but not always correctly. See https://www.blakemorgan.co.uk/training-knowledge/guides/client-guide-use-discretionary-trusts/ and https://hullandhull.com/2018/01/saunders-v-vautier-mean/

    Can also speak from personal experience - I am a beneficiary under a discretionary trust in my late grandfather's will and am well beyond the age of 18, but can't access the loot for some time yet!
    In the OP.s case they are the only beneficiary AIUI so he IS entitled at 18. In view of the amount involved, and the tax implications the trustees need to get specific paid for advice rather that relying on an article on the web.
  • Keep_pedalling
    Keep_pedalling Posts: 16,614 Forumite
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    I would love to know why someone thinks keeping a legacy back until the beneficiary is 35 is a good idea. They are saying they want them to have no access to the money to help with university costs, no access to help buy first house, get married and probably when having first child. Bonkers!
  • Brynsam
    Brynsam Posts: 3,643 Forumite
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    edited 14 May 2018 at 9:11AM
    Yorkshireman99 wrote: »
    In the OP.s case they are the only beneficiary AIUI so he IS entitled at 18. In view of the amount involved, and the tax implications the trustees need to get specific paid for advice rather that relying on an article on the web.

    Absolutely (or relying on input from well-meaning non-lawyers on this forum). The reference was more for your benefit in this case! Without seeing the full provisions of the trust, making a sweeping statement that 'there are no get-outs or loopholes' is potentially hugely misleading.
  • Brynsam
    Brynsam Posts: 3,643 Forumite
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    Keep_pedalling wrote: »
    I would love to know why someone thinks keeping a legacy back until the beneficiary is 35 is a good idea. They are saying they want them to have no access to the money to help with university costs, no access to help buy first house, get married and probably when having first child. Bonkers!

    ... or losing a chunk of their inheritance because their early marriage goes wrong as so many do, and being left a single parent with a young child and nowhere to live a few years later. Godsend!

    Usually more than one side to why something is or isn't a good idea.
  • Keep_pedalling
    Keep_pedalling Posts: 16,614 Forumite
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    Brynsam wrote: »
    ... or losing a chunk of their inheritance because their early marriage goes wrong as so many do, and being left a single parent with a young child and nowhere to live a few years later. Godsend!

    Usually more than one side to why something is or isn't a good idea.

    What makes you think the trust would not be taken into account in the case of a divorce?
  • Brynsam
    Brynsam Posts: 3,643 Forumite
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    Keep_pedalling wrote: »
    What makes you think the trust would not be taken into account in the case of a divorce?

    Many years of first hand experience - it is very rare that people include such a provision.
  • Yorkshireman99
    Yorkshireman99 Posts: 5,470 Forumite
    Brynsam wrote: »
    Absolutely (or relying on input from well-meaning non-lawyers on this forum). The reference was more for your benefit in this case! Without seeing the full provisions of the trust, making a sweeping statement that 'there are no get-outs or loopholes' is potentially hugely misleading.
    You may think that but having taken specific legal advice for myself that is what my solicitor told me. She also stated that solicitors are STILL including these ineffectual clauses in wills today. With respect you will understand why I prefer her advice to that of anunknown stranger. Perhaps you could cite a recent case where the Saunders jubgement has been overturned or not upheld?
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