Tag: will writing

1. Only naming a single beneficiary.

A key element of a discretionary trust is that there must be multiple potential beneficiaries who can benefit from it. The trustees’ discretion is over not just how to manage the capital and income of the trust fund, and when to make distributions, but who those distributions should be made to.
If there is a single beneficiary and no potential for new beneficiaries to be added to the trust then what you have is not truly a discretionary trust at all. For tax purposes it would be treated as either a bare trust or an interest in possession, depending on the default clause.

2. Having a very limited pool of beneficiaries
Only naming a couple of individuals can work fine initially. The trust could then be faced with the same issues as described in point 1.

3. Misunderstanding the point of a default clause

A discretionary trust can last for up to 125 years. This is the maximum perpetuity period allowed by law according to the Perpetuities and Accumulations Act 2009. The reason English trusts have a maximum perpetuity period at all is because there is a general legal principal that a person cannot tie up their assets in trust indefinitely. At some point the assets have to actually vest in someone. This is known as the ‘rule against perpetuities’, and sometimes ‘the rule against remoteness of vesting’.
What this means for discretionary trusts is that there needs to be a default beneficiary, and this needs to be a person who can take any assets in the trust fund at the point the trust ends. The circumstances in which a discretionary trust will end with assets still in it would be:
a) All of the potential beneficiaries have died.
b) The trust has reached the end of its 125-year perpetuity period.
Without a valid default clause any remaining funds result back to the testator’s estate, so in a worst scenario where the discretionary trust was a trust of residue the resulting fund would pass on intestacy.



We all spend our lives working to build our lives and increase our assets to lead a happy and satisfied life. You may have a house(s) or flat(s), shares, savings, investments, personal possessions and so on. All of these assets form your “ESTATE”. Making a Will ensures that when you die, your estate is being shared according to your wishes and is later owned by the people you wish.

Everyone needs a Will. Your Will lets you decide and control what happens to your estate after your death. If you make a Will, you can also make sure you do not have to pay more inheritance Tax than required. If you die without a Will, then law decides who gets what and how much from your estate.

Here are few things which you need to consider before making a Will:

  • Layout your assets. Finalise what you own and what are your liabilities.
  • Decide who would be the Beneficiaries – who gets what after your death. If any of the beneficiaries pre-decease you, who would you like to benefit from their share? Their partner, or children or anyone else? Or would you like it to fall back in your estate?
  • Executors/ Trustees of your Will – They are the people who would be responsible for managing your estate according to your Will and implementing your wishes after your death. They should be the people you trust and believe would work in the best interests of your wishes after your death.
  • Children and Guardians – If you have minor children, it is important to consider who would look after them after your death. For such a reason, you can appoint a guardian in your Will to look after your minor children. But you need to discuss such a scenario with the persons you would be appointing as Guardian before making a Will.
  • Specific Gifts – You need to map out what gifts you would like to make through your Will and to whom. It can be in the form of money gifts or specific property or any of your personal possessions.
  • Charities – You can also make a gift to any charity through your Will. If there is any particular charity that you have an affinity for, then leaving a gift for them would be perfect way to acknowledge it. Making a gift to charity is exempted from any Inheritance Tax liability.
  • Residuary Estate – This is what is left in your estate after you have made all the gifts and given away our assets and paid all the liabilities. You need to decide who you would like to receive or benefit from your residuary estate. You can leave your residuary estate either to your partner, or children, or charity or any other individual(s). If you want to leave it to your minor children, then such an estate would be held on trust for them till they reach the age of 18 or 25.
  • Exclusions – This area lets you exclude certain people from benefiting from your estate upon your death. It could be your previous partner(s), or people from other family complexities, or people you specifically do not want to benefit from your Will.
  • Funeral Directions – Before making a Will, you need to consider about your preferred funeral arrangements: would like to be cremated or buried? Any specific place for burial? If cremated, where would like your ashes to be placed or scattered? Would like to donate organs?
  • Storage – It is important you store your Will in a safe place and let your family members or executors know where it has been stored in the event of your death. We at ADRIANJKNIGHT LTD do offer a storage facility, where your important legal documents can be stored safely and securely by our regulators at Lincoln and would also be stored at National Will Archive.
  • Review – It is important to review your Will every 2 or 3 years and update it in case of any changes in your life – family or financially.