Commentary

23 Non-execution: court intervention

POWERS OF APPOINTMENT vol 33
| Commentary

23 Non-execution: court intervention

| Commentary

23 Non-execution: court intervention

The court will compel the execution of a trust, but, in general, it will not compel the execution of a power. For example, in the case of a discretionary trust, the trustees are obliged to appoint a beneficiary to receive any income arising under the trust within a reasonable time of it becoming available1. If the trustees fail to appoint, then the court will execute the trust2.

In the case of a bare power (that is, a non-fiduciary power), for example where there is a mere power to distribute with a gift over in default, the appointors

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