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UKSolicitorJA
UKSolicitorJA, Solicitor
Category: Law
Satisfied Customers: 4312
Experience:  English solicitor with over 12 years experience
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Does a charitable trust continue to legally exist in the following

Resolved Question:

Does a charitable trust continue to legally exist in the following circumstances?
1. It was inactive for 12 years before the death of its founder and final trustee.
No funds passed through the account during this time.
AND
2. For four years before the death of the founder and final trustee it did not have the minimum number of trustees require by the Trust Deed.
Submitted: 3 years ago.
Category: Law
Expert:  UKSolicitorJA replied 3 years ago.
Hello,

Are you able to upload the trust document here?
Customer: replied 3 years ago.
1. Trust deed attached - I hope. If not please send me an email address to send it to you.

2. There were no funds (and no activity) at all for over 12 years, but the founder (who died in 2010) left £750K in his will. This was as the result of undue influence by one person who thought he would have control of these funds and said that he would fight someone else ‘for the Trust’. I am very uneasy as I know that the founder (a friend of mine) had given up on the Trust and was ‘glad to be rid of it’.

In his will there is a clause that any bequests to charities should be made only if they have operated in the twelve years before his death. I do not have a copy of the will, but have asked the next-of-kin to send me the relevant clause.

The deceased’s family, most beneficiaries under the will and close friends of the deceased feel that the Trust should not be revived or re-instated with the Charity Commission who removed it in January 2011, two months after the founders death though they were unaware of his death..


3. Presumably if the Trust did not exist then it cannot be a beneficiary especially if the deceased made it a condition that it must have been operating within the last twelve years.

Therefore I need to know whether the Trust existed in view of the following facts:

A. It was inactive for 12 years before the death of its founder and final trustee.

No funds passed through the account during this time.

AND

B. For four years before the death of the founder and final trustee it did not have the minimum number of trustees require by the Trust Deed.


The next of kin (who is very ill and therefore has asked me to explore this matter) has already been given conflicting opinions:

1. The lawyer who drew up the will says that the Trust no longer existed at the time of his client’s death.

2. The independent administrator of the estate says that it did exist.


I am looking for a definitive answer or at least a consensus of opinion so I would be very grateful for any light that you can throw on the matter.

Regards

Sy

Expert:  UKSolicitorJA replied 3 years ago.
I cannot see the trust document here yet, it may take time to upload, or please ask customer service to send to me. If you have it on the web, you could give me a link to it here
Customer: replied 3 years ago.
Expert:  UKSolicitorJA replied 3 years ago.
Thank you.

If none of the original Trustees are alive and no one was appointed to replace them as trustees, it is arguable that the trust is no longer existing and this is more so if there are no trust funds remaining anywhere.

Since the trust was irrevocable, it was not up to the settlor to revoke it, but the trustees had the power to wind it up. However, if there are no trustees remaining, arguably there is no trust in existence.

Hope this helps
Customer: replied 3 years ago.

Thank you so much. Your reply was very helpful but raises further questions.


The situation may be complicated by the fact that the independent administrator, acting against the expressed wishes of the family and a large majority of the major beneficiaries, took it upon himself to appoint trustees and transfer funds to the Trust.


Could it be argued that he was exceeding his responsibilities or that his actions were invalid?


If so would this be a Court matter or could his actions just be invalidated on legal grounds ior be revoked by him?


Incidentally the independent administrator was in possession of documents, notably codicils to an earlier will from which the Trust had been completely removed, which clearly indicate undue influence in respect of the Trust as well as other matters.


Could the Trustees appointed by the independent administrator now wind up the Trust and refuse the funds?


Your answers are really very important to me.


Many thanks, Sy


 

Expert:  UKSolicitorJA replied 3 years ago.
Thank you.

Unfortunately, your query is far too complicated to be dealt with on a forum like this as it requires a specialist trusts lawyer to examine the issues and documents carefully.

However, from what you state, there are question marks about the actions of the so called independent administrator and it would appear that court involvement is required here unless this person agrees to undoing his actions.

The funds must be distributed according to the terms of the trust document.

Hope this helps
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