Question relating to a Will dictating a trust to be set up

[lowrie333]

Hi, i'm hoping that there are a few legal eagles out there who can help.

I need to know what this section of a Will means -

to hold the remainder upon trust and to hold the income thereof upon protective trusts under SEction 33 of the Trustee Act 1925 for the benefit of XXX and after their death to hold this share of the residuary esate for XXX's children.

So........does there have to be anything set out by the person who made the will as to the basis of the trust or does the person charged with holding the trust have to set the parameter?

And does the beneficiary (XXX) have the right to apply for the capital at any time, or could everything be with held, including any interest?

Im sorry if i havent worded my questions correctly, im going around in circles and have now confused myself!

Thanks greatly to anyone who can help.

[dzug2]

If the person who made the will has not specified anything then the Trustee Act sets out the powers and limitations of the trustee.

It looks like a life interest trust - XXX gets the income, and his kids get the capital on his death provided they are of age.

I don't think you can withold income - if you could then the trust is of no benefit to XXX and he might as well not be named at all.

The capital question - don't know but strongly suspect he cannot apply for the capital.

[lowrie333]

Thanks dzug for replying and helping out. I was wondering about the interest due to the fact that the Will states it is to be held on protective trust. All my findings on those type of trusts say that the beneficiary is not completley entitled to the money held on protective trust and has to apply. But have i read that all wrong?

[themas]

If you are the trustee you need to be certain about what you are doing, as otherwise you could find yourself personally liable at some stage. With the best will in the world, you are extremely unlikely to get a definitive legal answer here. You really do need advice from a trust solicitor - if available, the one who drafted the will would probably be best placed.