Asked to advise on a discretionary trust. This trust was settled from the trustees appointed under a will to hold funds for a niece until such time as niece reached age of majority. The trustees elected to settle the funds onto a discretionary trust for the benefit of the daughter and (in time) her children. The daughter is now of age, but suffers from mild mental health complications. It is to her advantage that the trust take its perpetuity period from the date of settlement to the end of the statutory period and not be required to vest as at her having attained the age of majority. Is there any good case authority on this point?
Surely it all depends on the terms of the discretionary trust and whether they were authorised by the will. If the will provided for the niece to take at 18 but empowered the trustees to override that provision by creating a discretionary trust lasting longer, then she presumably remains just a discretionary beneficiary. If the discretionary trust terminated when she reached 18, or the trustees went further than authorised by the will, then it will be different.
Nicholas Le Poidevin, Q.C.
New Square Chambers