Lifetime discretionary trust - is it possible?

Trusts Discussion
1

A colleague has asked me to post this for clarity, she has a discretionary trust which is limited to the lifetime of the primary beneficiary (i.e. in the wording the trust period has been amended from 125 years to the lifetime of the primary beneficiary).
We have looked at the Perpetuities and Accumulations Act 2009 which states at 5.b. that the perpetuity period for a discretionary trust is 125 years and any specification in the trust instrument is ineffective.

We are therefore assuming that the trust we have cannot therefore be limited to the lifetime of the primary beneficiary and will simply remain a 125 year period as it is overridden by statute? The only way around this would be to include in any letter of wishes that the trustees consider winding the trust up on the death of the primary beneficiary?

Does this still remain a discretionary trust with the period overridden by the act, or is there an argument that actually it’s a life interest trust?

2

S. 5 only defines the perpetuity period, it does not prevent you bringing a trust to an end. You can still define a “Trust Period” as the life of the primary beneficiary and state that, following that period, the trust fund will be held on different trusts (such as absolutely for a defined class of beneficiaries). This doesn’t change the perpetuity period, which remains 125 years.

Or you can say, “During the lifetime of the Primary Beneficiary, the following trusts shall apply” and then follow up with “Subject as above…” (recommended) or “Following the death of the Primary Beneficiary” (riskier due to possible lacunas).