Trusts Law - Certainty Of Subject

[delmo]

In a testamentary bequest does property subject of a discretionary trust have to be defined? For example, would the term in a will "My trustees, in their discretion, to make awards to...." fail for lack of certainty of subject? i.e would the bequest actually have to state "I provide £10,000 for my trustees, in their discretion, to make awards to..."

Many thanks.

[dzug2]

Well logically it refers either to the whole of your estate or to your residual estate, depending on what the rest of the will says - so it's not actually uncertain

But I've no idea if the law is as logical as that.

[FredPuli43]

Surely, naming nobody and no definable category will fail for uncertainty. The trustees would have no clue as to how to define or identify a potential beneficiary. Without looking it up (Barmaid will know), I can't say whether a clause "my trustees in their discretion to make, to any person being a life in being at the time of my death.." would fail. I suspect not, but stand ready to be corrected. :)

[woofgang]

Not a beagle or an eagle but what about other beneficiaries? Surely they would be entitled to whatever they had been left? As drug says, it would work if it was either the hole of the estate or the residue.

[Peter Pedant]

Fred I think the beneficiaries have been defined,
but the subject of the trust has not been ( in a will)

now since executors are trustees in law
and wills commonly have phrases like my estate wherever it be and

then I would have thought it would not fail so long as the beneficiaries are defined ....

there you are - no one ever paid me for my opinion - and it must be seen to be the usual loose and nebulous rubbish

[woofgang]

Blooming spellchecker, not hole, whole

[FredPuli43]

Can't see any objection to part of the estate being subject to discretionary trusts. For example, a multi-millionaire might wish to give his yacht to a favourite nephew, because the nephew is the only one of his family who likes sailing, but leave the rest of his estate on such trusts. There used to be a potential tax advantage in using such a device; there may still be; rather than, say, leaving it to the beneficiaries and executors to rewrite the will to make it more tax-efficient.

[Barmaid]

I'm fairly sure this is an essay question which is why I haven't answered. However if the OP confirms it isn't and gives some more details I'll be happy to provide the answer.......

[delmo]

Hi All,

Thanks for the answers. @barmaid, it's not an essay question, I'm 52! My wife and I are trying to make "home made wills." If I'm honest I think I may have tried to be too smart for my own good with the way I phrased the op as a lot of the terms are alien to me and are just what I have picked up from Google! Basically, I want to leave something to my sister's kids, trouble is I don't know what. I have made provisions for other family members but my niece and nephew are so young I'm not sure what to leave them and would rather leave it up to my executors :-)
Any help would be truly appreciated.

[FredPuli43]

Right,delmo, I can hear the rest of the lawyers on this site saying "Go to a solicitor" when they see this. That goes for me, too. Will writing is not for amateurs, the more so when the layman is thinking of trusts, discretionary or otherwise, and any gifts to children are being considered. There are other considerations which never , or rarely, occur to a layman, such as the question of any named beneficiary dying before the person whose will it is, among others. Few wills have involved discretionary trusts anyway and those that have have generally been made with tax considerations of substantially wealthy people in mind. And avoid going to "will writers". These people do not need to have any legal qualifications at all, and very few, if any, do, though some have passed tests to belong to one of their trade associations. I would no more trust a bus driver, say, to write my will than I would have him build my house,whatever skills in that he claims to have and whatever insurance against negligence he says he has.

[woofgang]

I absolutely agree with FredPuli and I am not in the legal profession, the bloke who wrote our will went to a lot of trouble to find out what we wanted to happen, NOT what we wanted written down because we thought that would make happen what we wanted to happen. We also had a complicated "changing circs" problem (personal not for tax or other financial purposes) and, like you were doing wills "just in case" In the end what we did after much thought and discussion was to leave the whole of the estate to a trusted person who was both beneficiary and executor and left it to their wisdom and judgement to apportion the estate appropriately according to the circumstances at the time. Its a huge burden of trust to put on anybody and we talked it over with the person first.