Hello
Can Trustees legally waive indexation if there is no express power in the Will/Trust deed or charge (query is in relation to a 2004 NRB Trust).
Would the advice differ if you are acting as a Professional Trustee?
Thank you.
One has to distinguish between the legal right to do something and the equitable consequences.
I suspect the trustees have the legal right as per the terms of the contract to waive indexation but they are bound by their equitable duties, which prevent them from doing that.
However, suppose the trustees had the power to (and did) make an appointment such that the benefit of any indexation would accrue to a particular beneficiary, and suppose the beneficiary requested the trustees to waive the indexation and promised to indemnify them against any claims if they did so. In those circumstances, possibly, the trustees may feel comfortable in waiving their right to indexation.
I think the consequences are still open to discussion but in practice it may be do-able.
Paul Davies
Clarke Willmott LLP