Deed of Variation and consent

Trusts Discussion
1

Hello,

What are the rules about who can consent to a Deed of Variation.

I ask as I am drafting a Will and the client wants to know what would happen if the one of the beneficiaries was a minor and their share was being held on Trust until they were 18. If a Deed of Variation was required (i.e to make a gift to charity to lessen the IHT) would anyone be able to give consent in the minor’s interests?

Thanks

2

Minor children can’t consent so the DoV could not amend their share. An option is to have a Discretionary Trust with a detailed Letter of Wishes addressing such an issue. The client being advised they can then change their LoW as they see fit e.g. adding they want X% to charity.

My view is that a professional Trustee should be named in such an event. However, clients can be reluctant to do so. Also, Discretionary Trusts can be daunting to many clients. These two points are understandable from a clients view, but the client will have to decide what is important to them as they often want all options only to back-track when how to make that deliverable is explained.

Relying on the potential for a DoV takes it out of their control. Whereas as a DT, with the right Trustee, retains that degree of control, as well as flexibility.

3

Thanks Karl. That is what I thought - you hit the nail on the head as the client is adamant they do not want a Trust. I will try again!

Many thanks

4

Ha…that does not surprise me…

In this scenario I would emphasise the flexibility of the DT, rather than the Trust. It seems likely there wouldn’t be an ongoing Trust, which should allay their concerns. Though that is not to be taken for granted.

Perhaps try and explain the client can retain control with a DT and the right Trustees. May be wasted breath but at least you will have tried.

Good luck…

5

I understand that an application to Court would be required under the Variation of Trusts Act. However, have you considered varying the Will without impacting the minor’s entitlement? The Court is unlikely to agree to a variation if the minor’s share is being reduced.

6

Oops… I didnt see the thread, just the original question. Also when I say the Court are unlikely… essentially i mean they will not agree to the variation.