A settlor (to date deceased) created a Discretionary Trust in October 2007. The class of discretionary beneficiaries is open (settlor’s descendants: children (only one son) and grandchildren (now only one granddaughter).
The trust deed provides for the widest powers to the trustee (overriding power of appointment, power of advancement and power of ‘resettlement’; power to add and exclude beneficiaries and the power to vary the trust deed). The “ultime default trust” clause provide that ““…if and so far as not wholly disposed of for any reason whatsoever, the capital and income of the Trust Fund shall be held in trust for a charity absolutely”
Now the settlor is deceased, and his son (merely a potential beneficiary) decided not to terminate the trust set up by his father.
The settlor’s son (a potential beneficiary), a man of a certain age, would like to further protect the trust fund which, in the event of his death, could fall entirely into the hands of his spendthrift daughter. He asked if it would be possible to amend the trust deed so as to strengthen the terms of the deed.
In my opinion it is not possible to amend the trust deed, as the settlor is dead and nothing in the letter of wishes had been expressed.
Perhaps the only alternative is to appoint the whole trust fund to the son and he will set-up a new trust as a settlor in favour of his daughter.
Thank you for your attention and helpfulness.
Sarah