Q&As

In a trust where all the trustees are required to act unanimously, would the trustees reducing the number of trustees required to make decisions (in accordance with a clause of the trust instrument allowing them to vary their powers) be construed as the delegating trustees benefitting from the trust?

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Published on LexisPSL on 29/04/2019

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • In a trust where all the trustees are required to act unanimously, would the trustees reducing the number of trustees required to make decisions (in accordance with a clause of the trust instrument allowing them to vary their powers) be construed as the delegating trustees benefitting from the trust?

In a trust where all the trustees are required to act unanimously, would the trustees reducing the number of trustees required to make decisions (in accordance with a clause of the trust instrument allowing them to vary their powers) be construed as the delegating trustees benefitting from the trust?

If trustees are to exercise a power to vary the terms of the trust in a manner that would not put them in breach of their duties as trustees, the following factors must be considered:

  1. the exact terms of the power as set out in the trust instrument

  2. the reasons for exercising the power

It is also good practice to refer to the settlor’s letter of wishes, if available for guidance.

To a certain extent, a power to amend resembles a power to appoint or a power to revoke. Therefore, the general principles which apply to such powers, including the doctrine of fraud on a power, also apply to powers of amendment. See Commentary:

  1. Fraud on the power: Underhill and Hayton: Law of Trusts and Trustees [57.51]

  2. Beneficial arrangements for which approval may be given: Underhill and Hayton: Law of

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