Is this a valid gift into Trust?

A client is Executor of an Estate of Mrs X. In 2003 Mrs X took out an Income Bond investment with an insurance company which paid out on joint lives of her and Mr X. She also completed a Settlement Deed to gift the Bond into a discretionary trust. Mr X and her godson were stated to be the trustees. The Settlement Deed held by the insurance company was executed by Mrs X (as settlor) and Mr X (as trustee) but not godson (as second trustee). He claims to have signed a copy of it and returned it to Mrs X to then be returned to the insurance company.

In the absence of evidence of the godson executing the trust deed, is the gift into trust valid as one trustee executed the deed or would it only be valid if both trustees named in the deed executed it?

Samir Hussain

From distant memory, I recall looking into this a while ago and came to the conclusion that the Trust was valid. I will need to rack my brains to remember the file for the appropriate evidence, although I am sure others on the forum will be able to quote the necessary chapter and verse.

A trust is not invalid for want of a trustee, provided that the other elements exist (i.e. the 3 Certainties).

The fact there is evidence that Mr X accepted the trusteeship re-affirms the existence of the trust.

The godson asserts that he accepted the trusteeship, so is not able to disclaim it.

Is Mr X still alive? If not, I suggest the godson might make a statutory declaration to the effect that whilst he had not completed the declaration of trust returned to the insurance company, he had accepted the office as trustee. Consequent upon that he may need to consider appointing an additional trustee to act with him (insurance based trusts tend to require 2 trustees or a trust corporation to exercise trustee powers).

If Mr X is still alive, I don’t think anything would be necessary fr the godson to act with him, although the insurance company may have its own particular/peculiar requirements before acknowledging the godson’s status as the second trustee.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

I suspected Paul (or Malcolm) would come good on this!

Not wishing to disappoint Haroon, having referred to my Notes made over the years the trust still stands as there is (perhaps) surprisingly no requirement for any of the trustees to sign the trust deed although typically they are parties and do sign. See Re Chrimes [1917] ChD and LADY NAAS V WESTMINSTER BANK LTD [1940] AC 366.

Malcolm Finney

Thank you for all the replies - very helpful. It will be interesting to see what the financial ombudsman’s response to the godson is regarding his complaint about the insurance company.

Samir Hussain