I have a Family Interest in Possession Trust Deed dated in 2016, where the settlor lived and died in England.
The deed holds the STEP powers, but strangely refers to Section 32 and 33 of the Trustee Act (Northern Ireland) 1958 when it refers to the advancement of the assets held.
Is there anything I should be aware of, or is there a particular reason why the NI Trustees Act is referred to rather than the England Trustee Act?
There is a separate set of STEP Provisions supporting wills and trusts subject to Northern Ireland Law, check which set of STEP Provisions have been incorporated.
I agree that if the settlor was solely connected with England, it seems strange to include reference to either NI Law, or the STEP NI Provisions, in the settlement deed.
However, do the beneficiaries and/or the trustees have any connection with NI? If so, this could go some way to explain the apparent choice of NI Law.
I suggest sight of the drafter’s instructions and file notes might be helpful in identifying if there was a sufficient reason to include reference to NI Law, or if this results from a mistake. Although if it is caused by mistake, is it rectifiable and, if so, in which jurisdiction – E&W or NI?
If there is a mix of NI Law refereed to within the deed, but the STEP E&W Provisions are incorporated, you might need advice from counsel or a lawyer conversant with both sets of trust law, also taking into account the content of Provision 2.2 of the STEP (E&W) Provisions.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Thank you Paul for your guidance.
The trust deed states that it shall be governed by and constructed according to the law of England and Wales. And the Standard Provisions (exc clause 20.2) and all of the Special Provisions of the Society of Trusts and Estate Practitioners has also been cited.
No party has any connection with NI and the settlor has now passed away.
So I would presume the citing of the NI Trustee Act with regards to advancements is an error.
I have seen the exact same thing recently - reference to the NI Trustee Act but no discernible connection to Northern Ireland. Looking at the document, it looked to me as though it was a misused precedent. If there is any issue, it could well be cured as a matter of construction.
Josh Lewison
Radcliffe Chambers