A will trust set up a gift of residue (which included the family home) to be held on trust for the two named children until they attain 25 when it becomes theirs absolutely. They are now 22 and 24 and want to sell the family home that neither now lives in. Can they insist that the trustees sell or do they have to wait until they are both 25?
Richard Mugford
Mugford & Co Wills (Fareham) Ltd
If TLATA applies (unless death pre-1997 or expressly excluded) and they have interests in possession, I would have thought they have a pretty strong case under s.11(1):
“trustees of land shall…(b) so far as consistent with the general interest of the trust, give effect to the wishes of those beneficiaries”
Either way, I would have thought a trustee would need a good reason to refuse the reasonable wishes of the beneficiaries who will almost certainly receive the whole of the absolute interest within 3 years.
Andrew Goodman
Osborne Clarke LLP
The question asks about the ability to sell the trust property, but the title to the question is about ending the trust. They are of course different issues, but clearly related in the mind of the questioner. Andrew’s answer is directed at the former issue, not the latter.
So far as ending the trust is concerned, the trustees will presumably be able to use the statutory power of advancement to achieve this. That will not be possible if the trust has been in existence since before 1 October 2014, and if the power of advancement has not been extended by the will in the usual way (i.e. the will does not contain a decent set of administrative provisions). In that case it may still be possible to end the trust by consent (applying Saunders v Vautier) once the ultimate default beneficiary has been identified.
Paul Davies
DWF LLP
Yes, I missed that.
For the avoidance of doubt, chances are the trustees can refuse to advance the property (or cash proceeds) for now unless the two children are the only beneficiaries. Any gift over to grandchildren (including unborns) in case a child fails to survive to 25 would negate Saunders v Vauntier.
Andrew Goodman
Osborne Clarke LLP