A Settlor created 2 Lifetime Settlements by which she sought to settle the sums of £20k and £25k respectively upon the Trusts therein declared , one Life Interest and one Contingent. She arranged for bank accounts to be open to receive the monies but no actual transfer was made into the accounts by her before she died the following day.
The Trust Deeds provided that that the Settlor has “transferred or delivered to the Trustees or otherwise placed under their control the property specified in the Schedule” namely the respective sums.
She died Intestate. Her Estate consists of cash at bank.
There are perhaps 2 opposing views , one is that for a Trust to be properly constituted it must have assets transferred to it- this is not the case-no money had been transferred , but the Deed does make reference to it being “under the control” of the Trustees.
Secondly if the matter went before a Chancery Court the Court would look at the intention and potentially perfect the Trust be directing that the Trustees could call for the funds from the Administrators of the Estate. There are 3 Trustees and 2 Administrators so they are not one and the same persons.
I am minded to advise that on behalf of the Administrators we write to those entitled on the Intestacy and invite them to agree that the Trustees can call for the finds to go into the Trust Bank Accounts by way of a Deed of Variation and then distribute the balance as per the Intestacy provisions. They will be advised to get Independent Legal Advice of course. I wonder if anybody has any thought on the scenario.
Graham Edwards
Buss Murton Law LLP