Q&As

(A) established an inter vivos trust into which was placed her property for the benefit of her ‘descendants’. She now wishes her Will to include a number of pecuniary legacies which, in total, do exceed, and will probably exceed at death, her available (ie non trust) assets. What options are available to her in respect of the trust so that capital tied up in that trust could be released to pay, ultimately, the legacies?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 22/02/2016

The following Private Client Q&A Produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • (A) established an inter vivos trust into which was placed her property for the benefit of her ‘descendants’. She now wishes her Will to include a number of pecuniary legacies which, in total, do exceed, and will probably exceed at death, her available (ie non trust) assets. What options are available to her in respect of the trust so that capital tied up in that trust could be released to pay, ultimately, the legacies?

There are certain formalities contained in particular within section 53 of the Law of Property Act 1925 (LPA 1925), and it is assumed for the purpose of this question that those formalities have been satisfied. It is also assumed that the trust does not offend by reason of a lack of specificity of beneficiaries, (the class of beneficiaries established by the inter vivos trust being the ‘descendants’ of the settlor) and does not breach the rules relating to perpetuities. For further guidance on the requirements for a valid express trust, see Practice Note: Creation of trusts—express trusts.

This question relates to the situation whereby a trustee, having placed assets into a trust, wishes to have recourse to those assets in order to make specific legacies in her Will. This is a situation that may occur where existing assets are reduced during the lifetime of the settlor, or where circumstances, such as a re-marriage, may alter the intended structure of the disposition of assets upon death.

An inter vivos (‘within the lifetime’) trust is created when the legal and beneficial ownership of p

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