Overriding Powers - drafting confusion

(peta.shanks) #1

On having reviewed and advised on a number of trust deeds it has become clear that there is no apparent consensus on how overriding powers ought to be drafted and what power should be used and when.

Particularly, when it comes to transferring trust assets to the trustees of another trust.

Some lawyers include a specific power for this in the power of appointment, others in the power of advancement, and others have a standalone provision dealing with resettlement.

We are in a muddle. Does it matter? Certainly there are times when you may, or may not, want to create a disposal.

I would be very interested to hear members views!

Peta Shanks

(Paul Saunders) #2

Unless there is a prescribed form of trust instrument, I doubt that a
consensus would be achieved.

However, I would be troubled if all trusts had to adopt such a form as
it would then be necessary to remodel an intending settlor’s wishes to
fit with the prescribed form.

To my mind, the different forms in use reflect more on the drafter’s
preference in any particular circumstance and tend more to be a question
of style. Provided that the precedent preferred by the drafter gives
effect to the settlor’s wishes, it would be reasonable to adopt it.

Paul Saunders

(peta.shanks) #3

I agree that the trust instrument must give effect to the settlor’s wishes, however the settlor does not know what the position of the trust will be in 20 years time, nor perhaps the technical differences between the powers, and there is a legal basis determining why powers are included and where, although maybe now this isn’t always clear.

The founder of this forum says in his book that the power of appointment (as drafted in any common form) cannot itself be used to transfer the trust fund to new trustees - the power can instead vary/alter the terms of an existing trust - and yet this power is often, and usually, drafted into a wider power of appointment and solely relied on when transferring assets to a completely new trust. Is this technically correct?

Some include the power to resettle assets to a new trust within the power of advancement, but there is case law which has established that resettlement is authorised by the statutory power of advancement, in which case why include an express provision within that power in the trust deed (particularly where the power of advancement is usually drafted so as to remove the restrictions found in the statutory power).

Is there a rightful place? Should we all just be drafting wider powers of appointment and relying on that, or using a separate resettlement clause, or both?

Peta Shanks