I have been asked direct the following:
A will contains STEP provisions 1st edition. An Appointment in favour of a trustee does not include an independent trustee. Is this void or voidable based on the wording of STEP provision 9(3)?
This is a follow up to the same question I asked on TDF in 2016, as this person has the same issue.
The difficulty with the STEP provision is that it does not make it clear if the powers that “may be used to benefit a Trustee” if there is an independent trustee, cannot be used if there is not. If it was intended to be otherwise prohibitive, I would have expected James Kessler to have used clearer language to this effect.
Therefore the conclusion I came to, and Practical Law came to the same one when I put the question to them, was that the provision was only trying to deal with the conflict issue where there would otherwise be a breach of fiduciary duty, but if this was not followed, and there was in consequence a breach, the appointment would be voidable on the application of a beneficiary, rather than void.