Discretionary Trust Deed

Transcription

1 Section 1 Date of Trust Date of trust DD/MM/YYYY Section 2 - People putting the Initial Assets in the Trust The Settlor means the people putting the Initial Assets in the Trust. Settlor 1 - name Settlor 1 - address Settlor 2 - name Settlor 2 - address Section 3 - Initial Trustees The Trustees means the Initial Trustees or any other person acting as trustee of the Trust. Is Settlor 1 going to be an Initial Trustee? Signed Settlor (please circle) YES NO Is Settlor 2 going to be an Initial Trustee? Signed Settlor (please circle) YES NO Other/additional Initial Trustees Initial Trustee 1 name Initial Trustee 1 address Initial Trustee 2 name Initial Trustee 2 address Section 4 Part 1 - The Beneficiaries The Beneficiaries are any of the following who are not Excluded Persons and who are living at the date of this Trust or who are born before the end of the Trust Period, and also anyone added as a Beneficiary (if applicable) - Named Beneficiaries page 1

2 AND (a) The children and descendants of the parents of the Settlor (b) The spouses, widows and widowers, civil partners and surviving civil partners of the individuals in sub-clause (a), and (c) Any person or charity entitled to benefit from the estate of the Settlor under wills, the intestacy rules or otherwise Section 4 Part 2 - Powers to add and exclude Beneficiaries Are there going to be powers to add and exclude persons or charities as Beneficiaries and to add Excluded Persons? (please circle) YES NO If YES, are the powers to be exercised by Signed Settlor EITHER the Settlor or the survivor of them (please circle) YES NO Signed Settlor OR The Trustees (please circle) YES NO Signed Settlor Section 4 Part 3 Long Stop Beneficiaries These are the beneficiaries who benefit if the Trust fails for any reason. Section 5 - Initial Assets The Trust Fund means these Initial Assets, any other property transferred to the Trustees for the Trust, and any property representing those assets. Details of the assets are going into the Trust at the outset page 2

3 Section 6 - Other key terms used in the trust CHARITY means any body of persons or trust established for charitable purposes and qualifying as a charity under part 1 of schedule 6 to the Finance Act 2010 or any replacement legislation with similar effect. References to a Beneficiary being alive at a particular time will be taken to mean, in the case of a charity which is a Beneficiary, that it is in existence at that time. EXCLUDED PERSONS means (1) the Settlor, (2) anyone else who (otherwise than in a fiduciary capacity) adds property to this Trust, and (3) any person or class of persons or charity added as Excluded Persons. TRUST PERIOD means the period of 125 years beginning on date of this Trust. TRUST PROPERTY means any property in the Trust Fund. Section 7 - Trusts for the Beneficiaries 1. The Settlor wishes to establish a trust for the benefit of the Beneficiaries, and transfers the Initial Assets to the Initial Trustees to be held on the terms of this Trust. Discretionary trust of income 2. Subject to the Overriding Powers, the Trustees will hold the Trust Fund as follows - (1) Subject to sub-clause (2), the Trustees will accumulate the income of the Trust Fund during the Trust Period. Accumulated income will be added to the Trust Fund. (2) The Trustees may during the Trust Period pay or apply any part of the income of the Trust Fund to or for the benefit of any of the Beneficiaries as they think fit. Division of the Trust assets at the end of the Trust Period 3. Subject to sub-clause 2 and the Overriding Powers, the Trustees will hold the Trust Fund on trust for the Beneficiaries living at the end of the Trust Period in equal shares absolutely. Overriding Powers 4. The powers in clauses 5-7 (the Overriding Powers ) apply to the Trust Fund. They will only be exercisable during the Trust Period, and the Trustees may by deed release or restrict them in whole or in part on any terms they see fit. 5. Power of appointment (i.e. power to direct the terms on which Trust Property is held) (1) The Trustees may appoint that they hold any part of the Trust Fund for the benefit of any Beneficiary on any terms they think fit. (2) An appointment may create any provisions and in particular discretionary trusts and dispositive or administrative provisions exercisable by any person. It may also provide for accumulation of income for any purpose and for any period allowed by law. (3) An appointment must be made by deed. It may be irrevocable or (during the Trust Period) revocable. It may not affect income of the Trust Fund which has already arisen nor capital which has already been paid or applied freed from the terms of this Trust. 6. Transfer to other settlements page 3

4 (1) The Trustees may by deed declare that they hold any part of the Trust Fund on trust to transfer it to the trustees of another settlement, wherever established, to be held on the terms of that settlement freed and released from the terms of this Trust. (2) The Trustees may exercise this power even if persons other than the Beneficiaries may benefit under the recipient settlement, as long as they are satisfied that the transfer is for the benefit of a Beneficiary and that no Excluded Persons will benefit from the transfer. 7. Power to pay out capital The Trustees may pay any part of the Trust Fund to a Beneficiary, or apply it for the advancement or benefit of a Beneficiary. Long stop trusts 8. Subject to the provisions of clauses 2 7, the Trustees will hold the Trust Fund on trust for the Long Stop Beneficiaries, and if more than one in equal shares absolutely. Addition and exclusion of Beneficiaries 9. If powers to add or exclude Beneficiaries, and to add Excluded Persons, apply to this Trust, the following conditions apply to each exercise of the powers (1) It must be made by deed. (2) It will take effect from the date it is made or any later date during the Trust Period specified in it. (3) It may be revocable or irrevocable, but no power to revoke a declaration may be exercised after the end of the Trust Period. (4) Beneficiaries can be excluded permanently or temporarily. (5) It may not affect capital that has previously ceased to form part of the Trust Fund or income that has previously accrued. (6) It may extend to all or any part of the Trust Fund and may relate to a person who is neither born nor ascertained at the time of it. Section 8 - Provisions relating to the Duties and Indemnities of the Trustees Trustees duties 10. The Trustees may exercise their powers and discretions at their absolute discretion and from time to time as required. 11. The Trustees are under no duty to hold a balance between the conflicting interests of beneficiaries. 12. The Trustees are under no obligation to consult beneficiaries. 13. The Trustees may by deed release wholly or in part any of their powers (whether dispositive or administrative) or immunities, and may do so in a way which binds their successors. Delegation 14. A Trustee may authorise any person to exercise any of his powers (dispositive or administrative) on any terms as to remuneration (unless the person is an Excluded Person) or other matters he thinks fit. The Trustee will not be responsible for the default of that person (even if the delegation was not strictly necessary or convenient) as long as he took care in his selection and supervision. None of the restrictions on delegation in sections of the Trustee Act 2000 will apply. Companies page 4

5 15. The Trustees are under no duty to procure distributions from a company in which they are interested or to enquire into the conduct of the company (unless they have knowledge of circumstances which call for the enquiry). Benefits 16. A Trustee will (unless he is an Excluded Person) be entitled to retain for himself, and will not be obliged to account to this Trust for, any remuneration or profits which he may receive from any company, firm or practice (incorporated or unincorporated) of which he is a member, beneficial owner, shareholder, partner, officer, agent or employee and for which he would (apart from this clause) be liable in equity to account to this Trust. Charges and expenses 17. An individual Trustee who is engaged in a business which includes the administration of trusts may (unless he is an Excluded Person) charge reasonable fees for work done by him or his company, firm or practice (incorporated or unincorporated), and a corporate Trustee whose business includes the administration of trusts may charge reasonable fees for its work. 18. A Trustee may reimburse himself from the Trust Fund all reasonable and necessary expenses he incurs as a Trustee unless the expenses were incurred by reason of his fraud or negligence. Immunities 19. A Trustee will not be liable for loss caused to the Trust Fund unless it is caused by his own fraud or negligence. 20. A Trustee may exercise or join in exercising any discretion (whether dispositive or administrative in character) even if he has a direct or indirect personal interest in the way in which that power is exercised or in the result of the exercise of that power. Appointment and retirement 21. Where there is one Settlor, they will have power during their lifetimes to appoint new and additional Trustees. Where there are two Settlors, they will have power jointly while they are both alive, and the surviving Settlor will have power during the remainder of their lifetime, to appoint new and additional Trustees. 22. The appointment of a new Trustee will discharge an outgoing Trustee, and a Trustee may retire without any appointment and be effectively discharged, if, following the appointment or retirement there is a company or at least two individuals to act as Trustees. 23. A person may be appointed as a Trustee even if not resident or domiciled in the United Kingdom. Remaining out of the United Kingdom for more than 12 months will not be grounds for the removal of a Trustee. Section 9 - Powers to Administer and Manage Trust Assets 24. Introduction (1) The Trustees have the administrative powers set out in this part of this Trust. They may alter their administrative powers and give themselves or others additional administrative powers, including powers permitting the delegation or sub-delegation of discretion. (2) The Trustees may do anything which is incidental or conducive to the exercise of their functions, or which they consider to be expedient and for the benefit of the Trust Fund. (3) The Trustees may carry on the administration of the Trust anywhere in the world. 25. Investment and management (1) The Trustees may make any kind of investment that they could make if they were absolutely entitled beneficially to the Trust Fund, including land anywhere in the world page 5

6 (please note that you cannot invest in property via Novia Financial). They will be under no obligation to diversify the Trust Fund. (2) The Trustees may manage and dispose of Trust Property as if they were absolutely entitled to it. In particular, the Trustees may repair and maintain Trust Property and may develop or improve it. (3) The Trustees may insure Trust Property against any risk for any amount as if they were absolutely entitled to it. (4) The Trustees may permit Trust Property to be deposited with any custodian or subcustodian anywhere in the world, and may register Trust Property in the names of nominees or sub-nominees anywhere in the world. (5) The Trustees may employ agents and professional advisers on any terms as to remuneration (unless they are Excluded Persons) and otherwise as they think fit. (6) The Trustees may indemnify any person for any liability relating to the Trust. 26. Provisions regarding beneficiaries (1) The Trustees may appropriate Trust Property to a person in or towards the satisfaction of his interest in the Trust Fund, and without obtaining any consent. (2) Where Trust Property is to be paid or transferred to a charity, the receipt of its treasurer or another appropriate officer of it will discharge the Trustees. (3) Where a Trust Property is to be paid or transferred to a minor, the receipt of his parents or guardian will discharge the Trustees. (4) Where Trust Property is to be paid or transferred to a person who does not have mental capacity to appoint an attorney under a lasting power of attorney, the Trustees may (subject to the directions of the court or his receiver) apply that property for his benefit. (5) The Trustees may permit a beneficiary to occupy or enjoy the use of Trust Property on any terms the Trustees think fit. This does not restrict any rights of beneficiaries to occupy land under the Trusts of Land and Appointment of Trustees Act (6) The Trustees may lend trust money to a beneficiary. (7) Where the Trustees may apply income for the benefit of a beneficiary, they may do so by resolving that they hold that income on trust for the beneficiary absolutely. If they do so they may apply that income for the benefit of the beneficiary. For investment and other administrative purposes that income will be treated as part of the Trust Fund. 27. Income and expenditure (1) Income and expenditure will be treated as arising when payable and not from day to day, so that no apportionment will take place. (2) The Trustees may determine whether receipts and liabilities are attributed to capital or income, and whether taxes and expenses (including insurance premiums) are to be paid out of capital or income. (3) The Trustees may set aside and invest income to meet liabilities which ought to be borne out of income or to meet depreciation of the capital value of any Trust Property. page 6

7 Section 10 - Overriding Provisions 28. The Trust is irrevocable. 29. Notwithstanding anything elsewhere expressed or implied in this Trust - (1) the Trust Fund and its income will be possessed and enjoyed to the entire exclusion of the Excluded Persons and of any benefit to them by contract or otherwise, (2) no part of the capital or income of the Trust Fund will be lent to or paid or applied for the benefit of the Excluded Persons, and (3) no power or discretion under this Trust will be capable of being exercised so as to confer any benefit on the Excluded Persons or enable or facilitate any benefit to be conferred on them in any circumstances whatsoever. This clause overrides every other provision in this Trust. 30. This Trust is governed by English law. Section 11 - Execution IN WITNESS of which this deed has been signed and delivered on the date first appearing above. SIGNED and DELIVERED as a DEED by SETTLOR 1 Name of Settlor 1 Signature of Settlor 1 In the presence of Name of witness Address of witness Occupation of witness Signature of Witness SIGNED and DELIVERED as a DEED by SETTLOR 2 Name of Settlor 2 Signature of Settlor 2 In the presence of Name of witness Address of witness Occupation of witness Signature of Witness page 7

8 SIGNED and DELIVERED as a DEED by INITIAL TRUSTEE 1 Name of Initial Trustee 1 Signature of Initial Trustee 1 In the presence of Name of witness Address of witness Occupation of witness Signature of Witness SIGNED and DELIVERED as a DEED by INITIAL TRUSTEE 2 Name of Initial Trustee 2 Signature of Initial Trustee 2 In the presence of Name of witness Address of witness Occupation of witness Signature of Witness page 8