Signing a Deed with the formalities of a Will, as the Deed amends a Trust referenced in the Testators Will.
If other Trustees also need to sign the Deed do these Trustees also need to sign with the formalities of a Will?
Therefore wording on the lines of the following suffice?
“Signed, executed and delivered as a Deed by Testator John Smith on the 16 May 2023 in our presence and attested by us in the presence of him and each other.”
Similar for the other Trustees if necessary?
Alternatively solutions a day or longer after the Deed is executed to
re-execute the Will or
a Codicil.
You can’t “amend” a trust just because you feel like it. The trust may contain provisions allowing the trustees to change certain things and sometimes the beneficiaries together can act. Anyone who has insufficient technical knowledge about these matters and embarks on a DIY mission is likely to make matters infinitely worse than whatever the current problem is perceived to be. The cost of putting it right will likely exceed the cost of hiring a specialist professional now.
If the testator is still alive and has mental capacity he should just make a new Will. An existing Will, whether or not containing a trust, can be revoked at any time before death. If he is dead or has lost capacity he can’t, nor can he sign your deed. You talk about his re-executing the Will or making a codicil. If he is alive he should make a new Will. Codicils are tricky unless the changes they make are very simple. The idea that a deed should be used by a living testator to alter his existing will is “nonsense on stilts”. It could itself be interpreted a valid codicil if it is attested just like a will in the way the law requires and is plainly intended to operate only on his death. The legal formalities for signing a deed are not the same as for signing a Will or codicil. A deed is a document that takes effect in lifetime and could cause potential confusion as to when it was meant to operate. If his Will no longer represents his wishes he should just revoke it and make another that does. If someone is trying to bully him into doing so it will not end well. The new Will may be contested and held invalid and the old Will revoked nonetheless, so he will die intestate if the new Will is only challenged after he dies.
Thank you for recommending a Will over a Codicil.
The Lifetime Trust is a beneficiary in the Will its not a Will Trust.
My words amend the Trust in my question were maybe not good choice.
A Deed would for example be used to appoint a new trustee.
Or to add a new Discretionary beneficiary.
Make an appointment to a beneficiary.
The Deed would not be changing the Will itself, but the Trust has had changes since the Will was signed. So the possible need to get the Will re-executed after the changes to the Trust.
Apparently a Deed can be executed with the formalities of a Will, then no need to update the Will.
From Gifts to existing Trusts in “Drafting Trusts and Will Trusts”
We seem to have belatedly entered a self-help era in digital tax and chancery work. I recall Professor Julian Farrand’s typically mischievous albeit analogue lecturing comment as to this being the toast of the Chancery Bar. In re Digital Dedlock? Hope springs eternal.
I am used to assisting clients to state their objectives. I do not expect them to know or understand the technicalities of the law. Rather than tell us what the issues are, and what you want to achieve, you are regaling us with bits of dubious legal learning which even I after 50 years of practice simply cannot decipher. It seems that what you have is a will that leaves assets to an existing lifetime trust. Not at all an uncommon situation. Everything depends on the trust deed and trust law and you may well be able to do all the things you wish to, although you do not say what your role or authority is in regard to that process. There is such a lack of context that even if this Forum were the right medium, which I very much doubt, an attempt to do those things yourself is unwise because if you do not get it right you may be storing up problems for the future and your part in it may lay you open to legal action. A very simple example: if a trustee is not validly appointed everything they and any fellow trustees do in administering the trust may have to be undone perhaps many years later and at considerable expense.
Thank for taking the time to reply
When i ask a question, maybe i should make it clear its for knowledge, possible application. I thought that question might get reaction as its knew it was unusual (maybe did not relise it was that unusual) and I do not always use best words e.g. “amend” the Trust was not good choice.
Any updates to a trust left a gift in a Will in it would best to re-execute the Will (one bit paper) with a new execution date to keep it straight forward e.g. Codicil +Will (two bits paper) and very unusual it sounds Deed executed with the formalities of Will.
Just finding out what is possible rather than actually applying it to a situation, well at least at this point in time. I come from technical background so like understand it helps me connected all the information together and keeps my mind busy. What might be possible in the bigger picture I not saying i am good at seeing the bigger picture. I do have some back ground in the area, but not the legal side.
Neil.
I think the complication here Neil is that you’re not asking a question of how to do something, but instead making relatively nebulous statements around what might or might not be possible.
The fact that the trust is connected to the will has no impact on the formalities of executing documents relating to the trust. You have to follow the usual requirements to execute the deed, in line with the powers contained in the trust.
It make be possible to simply make the changes you want via relatively simple documents, but it might also be simpler to re-do the Will and if it’s a pilot trust with minimal assets it may be better to wind this up and start again from scratch.
However, in any case, as Jack has made it very clear, this isn’t something to DIY and you should seek some professional advice on the subject to ensure you don’t leave a very expensive mess to tidy up in due course.
Thank you for all the replies, this question was just theoretical
There are some very knowledgeable people that participate on the forum and helped out before
I could post more on the topic but not sure if its appreciated
Opinions may vary about whether this Forum is the right one for non-professionals to ask questions which present typically, like most of my former clients’ questions, i.e. as largely chaotic and needing to be reformulated in order to secure their objectives. I feel sure all of us are well used to doing that for our clients and are happy to do so in principle. They surely must understand however that this Forum cannot assist them in the way a direct client consultation would.
What I think is entirely unacceptable is for anyone to do exactly what Neil did. Although I commend him for his candour. I am sure we don’t mind theoretical points of law being canvassed but positing totally theoretical factual matrices for abstract personal gratification is wholly inappropriate. Like crying Wolf. Or shouting Help! in a crowded place just to see what happens.
I believe the Moderators should expand in pre-joining caveats what can be expected from a public Forum like this so that no one should have to be excluded arbitrarily. This is what the Woke Puritanical Law Society Gazette (Oliver Cromwell prop.) does to many of my unwelcome posts, sometimes placing themselves in the absurd position that later commentators are applauding earlier posts of mine which have already been taken down! While I may agree with some of the stern justifiable strictures of Sara and Karl, they should not need to make them so often. Clarity from the Moderators would surely be of benefit to us all.
I regret I am one of those who believes this forum should be reserved for STEP members to canvas the views of their peers.
One wonders if the day will come when a.n.other seeks to take action for ‘advice’ obtained on the forum.
We all pay our annual dues for access …
At the risk of putting my head above the parapet, make this a closed group, where we can talk freely.
As my old lecturer used to say … a little knowledge is a dangerous thing. Surely the case in point for the parties accessing the forum without legal knowledge?
I may be in the minority but feel the need…
I agree this forum should be for professionals only to post on. That is what it says it is for when you sign up.
When you sign up you are supposed to show your firm’s name. What name are the lay questioners providing? Is it left blank? Are they just naming whoever they work for which has nothing to do with trusts etc?
Why do people feel they are entitled to free advice? Often when they have substantial assets (eg a house). In any event, no one can give the detailed advice they frequently ask for without full consultation with them. All we can do is tell them to seek professional advice on an individual paid for basis.
If I give advice away to the public free on here why should my clients then pay me? And I agree that there is a worry that one day someone will sue over the “advice“ received. Especially if they came here with the sense of entitlement that some so clearly have.
So perhaps this forum needs to be open for posting only to those with membership of relevant bodies, although I would be happy for others to be able to read it subject to suitable caveats that they would have to agree to to get access.
I can understand the frustration and annoyance at what appears to me to be becoming a more prevalent problem regarding use of the forum.
In fact quite a number of years ago I raised concerns that some ‘professionals’ were just using the forum to get ‘easy’ answers instead of doing some research.
A lot of forum members would, I feel sure, wish to continue to provide help where it is genuinely needed.
I joined STEP in its very early days and having retired over 10 years ago decided a year or so ago, as a cost cutting exercise, I could no longer justify paying the annual membership fee (albeit the reduced retired membership fee in the last few years)
As I still find some queries and a sensible expression of views interesting and on occasions post my retirement contributed I would prefer the forum NOT to be restricted just to STEP members but would support steps being taken to try and restrict ‘abuse’ of the forum.
I’m retired 4 years and no longer a member of any vile supine pusillanimous toadying sanctimonious sycophantic (allegedly) “professional” body as I have had a 50 year basinful of all 3 of them. Shall I stop answering questions on here?
I am against blanket exclusions supplemented by value judgment-driven exceptions. I resent access to HMRC Agents’ forum being denied to me (and to Malcolm) because HMRC is the tax authority for all taxpayers and every citizen should have free access to the sources of law. This includes (I wish it did not) what HMRC’s view is, however self-serving and preposterous. And its alternative the Customer Forum is staffed by people who patently have a fundamental problem with arse-elbow differentiation.
“Our customer forum is for you, with all the help, support and guidance you need. You can ask questions, see what others are asking and get the answers and top tips on a range of topics including VAT, self-employment, Self Assessment or being an employer.” If you believe this you will believe anything. “Nothing is true and everything is possible”
HMRC’s Customer Forum is appalling, I agree! The answers they give to a lot of the queries are in no way correct (and of course would have no legal weight if the taxpayer were to have HMRC asking questions at a later date!) and make it harder for those of us with professional knowledge to do our job properly.