Discretionary trust appointments to a deceased estate


(J Tyson) #1

Is it possible to appoint out of a trust by using a deed of appointment to a deceased estate?

e.g. if the beneficiary who was intended to receive the entire trust fund absolutely, pre-deceases just before the deed is executed, (1) is the deed void if it is subsequently executed, and purportedly appoints out to the said beneficiary’s estate, or (2) is it valid and therefore permits the appointment out of the estate? Expressed another way, do appointments out have to be to live beneficiaries? The Will is silent on post death beneficial appointments.

All help would be greatly appreciated! Thank you…

J Tyson
Davin Solicitors


(Paul Saunders) #2

The death of a beneficiary normally excludes them from benefit, unless the trust instrument includes within its provisions the ability to benefit their estate after death, or their personal representatives (in that capacity).

If the trustees seek to appoint to the beneficiary, knowing them to be dead, and therefore no longer a beneficiary, they will be acting in breach of rust and would be liable to reconstitute the trust to the extent that any distribution has been made, or further costs incurred in progressing the appointment (an invalid action).

Paul Saunders