Drafting Trusts & Will Trusts 9th Edition
By James Kessler QC & Leon Sartin
Supplemental Will 2
(1) Surviving Spouse/Civil Partner Absolutely
(2) Discretionary Trust (if no Surviving Spouse/CP)
I, [Name of testator] of [address] declare this to be my last Will.
1I revoke all my earlier testamentary dispositions.
2Appointment of Executors
I appoint:
2.1[Name] of [address] and
2.2[Name] of [address]
to be my executors and Trustees.
[Other legacies, appointment of guardians, etc., follow here.]
3Residuary Estate
3.1My executors shall:
3.1.1pay my debts, funeral and testamentary expenses, legacies and Inheritance Tax on all property which vests in them; and
3.1.2hold the remainder (“my Residuary Estate”) as set out below.
3.2Debts, funeral and testamentary expenses, legacies and Inheritance Tax shall be payable out of the capital of my estate (subject to the Trustees’ administrative powers relating to capital and income).
4My executors shall hold my Residuary Estate on trust for my Spouse if [she] survives me absolutely.
5Definitions
In this Will:
5.1“The Accumulation Period” means the period of 21 years beginning with the date of my death.
5.2“The Beneficiaries” means:
5.2.1My descendants.
5.2.2The Spouses of my descendants.
5.2.3The Surviving Spouses of my descendants.
5.2.4Any Person or class of Persons added to the class of Beneficiaries by the Trustees by deed with the consent in writing of two Beneficiaries.
5.2.5[Any favoured charity].
5.2.6At any time during which no descendant of mine is living:
5.2.6.1[specify “fall back” beneficiaries if desired, e.g. nieces and nephews and their families]
5.2.6.2[any company, body or trust established for charitable purposes only].
5.3“Spouse” includes a civil partner within the meaning of section 1 Civil Partnership Act 2004 and a person is a “Surviving Spouse” whether or not they have remarried or entered into another civil partnership.
5.4“Person” includes a person anywhere in the world and includes a Trustee.
5.5“The Trustees” means my executors or the trustees for the time being.
5.6“The Trust Fund” means:
5.6.1if my Spouse does not survive me, my Residuary Estate; and
5.6.2all property from time to time representing the above.
5.7“The Trust Period” means the period of 80 years beginning with the date of my death. That is the perpetuity period applicable to this Will Trust under the rule against perpetuities.
5.8“Trust Property” means any part of the Trust Fund.
6Trust Fund
I give the Trust Fund to the Trustees.1
Subject to the Overriding Powers below:
6.1The Trustees may accumulate the whole or part of the income of the Trust Fund during the Accumulation Period. That income shall be added to the Trust Fund.
6.2The Trustees shall pay or apply the remainder of the income to or for the benefit of any Beneficiaries, as the Trustees think fit, during the Trust Period.
7Default clause
Subject to that, the Trust Fund shall be held on trust for [my children Adam and Mary in equal shares – or specify default beneficiaries as appropriate] absolutely.
8Overriding Powers
The Trustees shall have the following powers (“Overriding Powers”):
8.1Power of appointment
8.1.1The Trustees may appoint that they shall hold any Trust Property for the benefit of any Beneficiaries, on such terms as the Trustees think fit.
8.1.2An appointment may create any provisions and in particular:
8.1.2.1discretionary trusts;
8.1.2.2dispositive or administrative powers;
exercisable by any Person.
8.1.3An appointment shall be made by deed and may be revocable or irrevocable.
8.2Transfer of Trust Property to another settlement
8.2.1The Trustees may by deed declare that they hold any Trust Property on trust to transfer it to trustees of another settlement, wherever established, to hold on the terms of that settlement, freed and released from the terms of this Will.
8.2.2The Trustees shall only exercise this power if:
8.2.2.1every Person who may benefit is (or would if living be) a Beneficiary; or
8.2.2.2with the consent in writing of two Beneficiaries.
8.3Power of advancement
The Trustees may pay or apply any Trust Property for the advancement or benefit of any Beneficiary.
8.4The Overriding Powers shall be exercisable only:
8.4.1during the Trust Period; and
8.4.2at a time when there are at least two Trustees, or the Trustee is a company carrying on a business which consists of or includes the management of trusts, or when the power to appoint additional Trustees cannot be exercised.
9Standard Provisions
The standard provisions of the Society of Trust and Estate Practitioners (1st Edition) shall apply with the deletion of paragraph 5. Section 11 of the Trusts of Land and Appointment of Trustees Act 1996 (consultation with beneficiaries) shall not apply.
[Alternatively say: “The provisions set out in the Schedule below shall have effect” and set out the provisions in full in the schedule. The CD with this book has the form.]
Signed by [name of testator] to give effect to this Will,
in the presence of two witnesses present at the same time,
who have each signed this Will in the presence of the Testator.
[Signature of Testator]
Date
1st Witness
Address
2nd Witness
Address
1 This sentence was not included in some earlier editions of this book because it is not necessary. However experience suggests that it may be easier to follow if it is there.