We have a Deed of Variation which sets up a trust with the wording including the following:
“I give to X and Y the whole of my estate to hold as trustees upon Trust for such of them X, Y and X’s issue at such times (within the period of eighty years from the date of my death which period shall be the perpetuity period) and in such shares as the trustees for the time being of this my Will shall decide and in default for such of my issue as shall be living at the end of the perpetuity period in equal shares and my trustees shall have the power including powers of investment to deal with the trust fund in such a way as they shall think fit as if they were beneficial owners thereof.”
There are no express powers of appointment or advancement, does the wording amount to an implied power to advance or appoint?
I would read that as an express power of appointment (albeit using the word “decide” rather than “appoint”).
The section 32 power of advancement would also apply - either to half or to the entire trust fund if the deed of variation was executed on or after 1 October 2014.
Arguably the s.32 power could be used to advance capital to the issue of the deceased as they have an interest in capital under the default provisions. It rather depends on whether the prior discretionary provisions are a trust to distribute or a mere power - my instinct is the former, which would likely defeat any application of s.32.
Not so sure about there having to be an interest in possession. However, I do think there would need to be a presumptive share against which the amount of the proposed advancement could be measured. Therefore, I suspect the power could only be used in favour of the default beneficiaries rather than the discretionary beneficiaries.
I interpret the clause as using the word “decide” to relate to the choice of beneficiaries, so the clause reads "…for such of them [ ]as my Trustees may decide, not an implied power of advancement at all.