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  • FIRST POST
    • malcolmalisle
    • By malcolmalisle 12th May 18, 6:32 PM
    • 1Posts
    • 0Thanks
    malcolmalisle
    Locking it away until she is 24
    • #1
    • 12th May 18, 6:32 PM
    Locking it away until she is 24 12th May 18 at 6:32 PM
    My Sister (living) gave me 10,000 each for my two daughters with instructions that they cannot touch it until they are 24 year of age.
    As the money is not mine I put it into savings accounts previously setup for my children which are looked after by my wife.
    My eldest daughter will soon be turning 18 and will be legally entitled to have access to the account so I would like to move the 10,000 somewhere to uphold my living sisters wishes but find I cannot setup accounts or fixed term investments in my daughters name.
    What can I do please?
    Regards

    Malcolm
Page 4
    • IanManc
    • By IanManc 15th May 18, 5:34 PM
    • 562 Posts
    • 914 Thanks
    IanManc
    The wording on the will states:

    I GIVE the sum of XXXXX pounds (xxxx) to my said granddaughter GC1 on her 18th birthday with a further YYYYY pounds (YYYY) to be held on trust for her by her father ME until she attains the age of 25 years or if he in his absolute discretion thinks it appropriate to give her the benefit of the money at an earlier date.

    This is repeated for the other grandchildren.

    This was drafted by a solicitor so hopefully we are covered?
    Originally posted by cloud_dog
    That's a discretionary trust, not a bare trust. It's different, and it will achieve its objective.
    • IanManc
    • By IanManc 15th May 18, 5:40 PM
    • 562 Posts
    • 914 Thanks
    IanManc
    Interesting. I wonder if this may cause a lot of bequeaths to fall fowl of the 'law'?
    Originally posted by cloud_dog
    The other way for a will not to create a bare trust where a testator wants inheritance at a certain age is for the money to be left to someone if they reach the age of 25 - a contingent gift. The bequest only vests when the person reaches 25, and in the meantime the money is held on trust by the executors and trustees of the will.

    If the intended recipient dies before 25 then the money passes either to the residuary beneficiaries under the will or to the person specified in the will as an alternative recipient if the first intended recipient has died.
    • xylophone
    • By xylophone 15th May 18, 6:20 PM
    • 25,771 Posts
    • 15,226 Thanks
    xylophone
    That's a discretionary trust, not a bare trust. It's different, and it will achieve its objective.

    I'm not so sure - if the money has "indefeasibly vested" (see links in my previous), then the Trust is bare?

    It seems to me that the wording makes an absolute gift to the daughter as soon as the will comes into effect.


    The father has no discretion as to whether the daughter receives the money therefore the gift "indefeasibly vests" in the daughter?

    Any income arising on the gift belongs to (and will be taxed on) the daughter?

    According to HMRC https://www.gov.uk/hmrc-internal-manuals/trusts-settlements-and-estates-manual/tsem1563

    It is up to the trustees to establish whether a trust is bare. If the trustees have access to legal advice they should ask their legal adviser whether the trust funds have indefeasibly vested in the beneficiaries. If they have then the trust will be a bare trust.

    • xylophone
    • By xylophone 15th May 18, 6:30 PM
    • 25,771 Posts
    • 15,226 Thanks
    xylophone
    See also

    https://www.lawteacher.net/free-law-essays/property-trusts/trust-property-trustee.php

    Under a discretionary trust, the trustee may have a discretion as to the precise value of the beneficiaries' entitlement, or as to whether certain beneficiaries receive anything at all. An example of a trust term that would grant this dispositive discretion to the trustee is where a trust is established for a group of beneficiaries in such portions as the trustee shall in their absolute discretion see fit.

    The father does not have any such discretion as the daughter's entitlement is fixed?
    • FB13
    • By FB13 15th May 18, 8:45 PM
    • 124 Posts
    • 24 Thanks
    FB13
    See also

    https://www.lawteacher.net/free-law-essays/property-trusts/trust-property-trustee.php

    Under a discretionary trust, the trustee may have a discretion as to the precise value of the beneficiaries' entitlement, or as to whether certain beneficiaries receive anything at all. An example of a trust term that would grant this dispositive discretion to the trustee is where a trust is established for a group of beneficiaries in such portions as the trustee shall in their absolute discretion see fit.

    The father does not have any such discretion as the daughter's entitlement is fixed?
    Originally posted by xylophone
    While you are kind of on the right track, you are being confused by the posters who think discretionary trusts are some magic bullet that defeats Saunders v Vautier. They are wrong. Saunders v Vautier applies to discretionary trusts as well. They are trying to make a distinction between bare and discretionary trusts which is wrong.

    If you want to defeat Saunders v Vautier in the family scenario being discussed using a discretionary trust, you need another object (potential beneficiary) who will not (or cannot) consent to Saunders v Vautier being used. The dad could serve that role at the same time as being a trustee. Or use a younger minor who cannot give consent.
    • aroominyork
    • By aroominyork 16th May 18, 5:11 AM
    • 512 Posts
    • 167 Thanks
    aroominyork
    Am I the only one who had a quiet snigger at the thread title?
    • Malthusian
    • By Malthusian 16th May 18, 10:02 AM
    • 4,336 Posts
    • 6,833 Thanks
    Malthusian
    I GIVE the sum of XXXXX pounds (xxxx) to my said granddaughter GC1 on her 18th birthday with a further YYYYY pounds (YYYY) to be held on trust for her by her father ME until she attains the age of 25 years or if he in his absolute discretion thinks it appropriate to give her the benefit of the money at an earlier date.
    Originally posted by cloud_dog
    I disagree with IanManc and agree with xylophone and FB13. If the daughter asks for the money at 18 she will get it. This is a textbook Saunders v Vautier case. There are no other potential beneficiaries, which means at 18 she has the right to wind up the trust.

    If you want to defeat Saunders v Vautier in the family scenario being discussed using a discretionary trust, you need another object (potential beneficiary) who will not (or cannot) consent to Saunders v Vautier being used. The dad could serve that role at the same time as being a trustee.
    Correct, but you may as well just leave it to the Dad absolutely, with a letter explaining you want it to go to his daughter when she is 25 or as and when she is ready. And save the unnecessary expense, complication and tax of setting up a trust. He might spend it on himself, but exactly the same applies if you leave it to a discretionary trust of which he is trustee and a potential beneficiary.

    The only way around Saunders v Vautier is to create a risk that your intended beneficiary never sees the money - by adding other potential beneficiaries. If you are 100% certain you want them to have the money, you have to accept that you can't stop them spending their own money once they are a compos mentis adult.

    Securityguy of the Deaths, Funerals and Probate board said some months ago that a trust is a solution you don't understand to a problem you haven't properly thought about, and this does not appear to be an exception to the rule.
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