Variation of trusts

Variation of trusts

Variation of trusts—variation of trusts without the court's assistance

As a general rule trustees are bound to carry out the settlor's wishes, however circumstances may arise where a variation is desirable, eg in the interests of efficient administration. In such cases the trustees will first consider whether a variation is possible without the assistance of the court, failing which the trustees will then turn to the court for assistance.

Express powers

The trust instrument may have been drafted so as to confer on the trustees powers wider than those contemplated by the general law. Modern trust instruments generally contrive to allow the trustees considerable discretionary powers. For example:

•
a power of appointment (this is a power given by one person to another to declare how property is to be held)
•
a power of advancement (this power enables trustees to pay or apply trust capital to or for the benefit of those entitled to the trust capital; the power may be given by the trust instrument or, subject to contrary intention, the power contained in section 32 of the Trustee Act 1925 (TA 1925))

The

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