I have adapted the ‘Will—to spouse absolutely, then to children in equal shares absolutely with disabled child’s share being settled on trust’ precedent from Lexis for a client who is single and who has four children one of whom is disabled.
The precedent states:
All the powers and provisions applying to the trusts of this Will (the Powers) are subject to the following restrictions:
…
1.1.3 The Powers shall only be exercisable by deed, revocable or irrevocable.
My client’s son has asked me whether it is excessive that all of the trustees’ powers can only be exercised by deed. This strikes me as a reasonable point; for example, if the trustees decide they want to buy the disabled beneficiary food or clothes or pay his rent, it seems excessive that they would have to prepare a deed, presumably each time they wish to do so. Am I missing something? Is there a reason this precedent says that the powers shall only be exercisable by deed?
The trustees powers in the will are a power to appoint income in favour of the disabled beneficiary and a power to appoint capital in favour of the disabled beneficiary. Following the disabled beneficiary’s death, there is a gift over to the testator’s other children. If any of the testator’s children have pre-deceased, their share goes to their children and so on.
I think all trustee powers can in theory be exercised in writing under hand. Dispositive powers must be as they will be dealing with equitable interests and that includes such an interest in land: s53 LPA 1925. A legal interest in land must be conveyed by deed per s52 but by TR1 if it is registered as most now is.
I have had cause to be grateful when using Mr Kessler’s precedents that its power of advancement can be under hand. I have lost count of how many deeds I have drafted in my career but I am no longer allowed to do so as it is a reserved instrument activity. I get a proper chap/chapess to oblige so as not to sew up the patient with a nasty item inside.
As a fully paid up subversive and cynic I am tempted to muse that it is a device to drum up repeat business but I really believe it is a hangover from tradition like “aforesaid of the first part”.
I do think it serves indirectly a salutary purpose. Many of my clients had difficulty in appreciating that their company’s money was not their own and that they could accomplish any task without legal advice until I subjected them to detox or else goodnight Vienna.
The requirement for a deed to achieve something of gravity, e.g. exercise of a power of appointment, is that they may then seek advice about what they are proposing to do as opposed to how to do it. The worst offenders will have an aversion even to writing, mainly because it prevents them from disowning it later. That said administrative powers can be validly in writing and even orally though evidentially not to be recommended. I suppose clients now want to exercise powers on their phone.
I found my corporate and business clients had learned to twig when to put up with “bloody lawyers” whereas private clients often assumed that we were mugging them off by inserting on our doing things they could do equally well themselves. This is not about intellect. I found it stemmed mainly from the comparative rarity of the occasions on which they had to interact with the law and lawyers.
Finally there is self-preservation, much as I deplore defensive law as much as defensive medicine. Those who deviate much from the norm risk uncomfortable encounters of their own with lawyers appointed by their insurer.