I am dealing with a matter concerning a trust which appears to have been a home protection plan, set up by a husband and wife, with the documents having been drafted by another firm in 2011.
The original declaration of trust (DoT) sets out that the husband and wife each transferred 37.5% of their respective interests in the property (ie 75% of the whole of the property) to the trustees to sell, with power to postpone sale as long as they think fit. The DoT goes on to provide that the Trustees will permit the husband and wife to continue to live in the property rent free etc.
The default provisions in the DoT are “Subject to the above, the Trustees will hold the Trust Share (ie the 75%), its net income until sale, its net proceeds of sale and the investments representing the same (the “Property Fund”) on trust to transfer the same to the Trustees of the X Family Trust made on [date of original trust] 2011 to hold the same subject to the powers provisions and terms thereof and generally as an accretion to its Trust Fund (as therein defined).” - The beneficiaries of that trust include remoter issue born during the trust period.
In 2013 the wife died.
In 2019, the Trustees and the husband entered into a deed of amendment to change the terms of the original DoT so that instead of the remainder passing to the X Family Trust, it would pass absolutely to a number of named beneficiaries in various percentage shares.
My question is, what are your views on the validity and effect of this 2019 deed of amendment? My concern is that as the beneficiaries of the Family Trust which was to receive the remainder interest includes remoter issue, they could not have obtained consent from all beneficiaries? Am I missing something? I of course could be and so would be very grateful for any thoughts!