Creation of trusts—by Will
Creation of trusts—by Will

The following Private Client guidance note provides comprehensive and up to date legal information covering:

  • Creation of trusts—by Will
  • Trust drafting
  • Precatory trusts
  • Validity of the Will and trust
  • Secret trusts
  • Incorporation by reference
  • Mutual Wills

Trust drafting

Testators frequently wish to include a trust or trusts in their Wills. Even if this is not the case, a trust may arise:

  1. where a beneficiary is under 18 years at the death of the testator and the testator does not want the minor's parent or guardian to give a receipt on their behalf, there will need to be a trust of the minor's entitlement until they reach 18 and can give good receipt. In such circumstances it would be preferable to declare a trust expressly in the Will and so control the terms and trustees

  2. where contingent gifts are made and including a trust would enable the property to be dealt with until the contingency is satisfied

Once the decision has been made to include a testamentary trust, the form that trust will take must be decided. For example, if there is a wish to benefit the children, consider the requirements of a bereaved minor trust or an 18–25 trust.

When drafting a Will trust, a number of matters must be considered:

  1. the choice of original trustees

  2. the appointment of new and additional trustees

  3. a non-binding letter of wishes to guide the trustees

  4. administrative provisions

  5. the tax position

Powers given to trustees by the Trustee Act 1925 (TA 1925) , the Trusts of Land and Appointment of Trustees Act