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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9985
Experience:  30 years as a practising solicitor.
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Deed of trust Scotland

Resolved Question:

I am the beneficiary (along with my siblings) of a discretionary deed of trust (Scottish law) set up by my late father. This trust does not appear to have an end date. We would like to terminate the trust but the trust manager (a solicitor and his assistant) will not agree. What can we do?
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.

If there is no end date, the trust will end when it's purpose is complete.

How was this trust created? What are the terms of the trust?
Customer: replied 2 years ago.

Attachment: 2014-03-04_183747_discretionary_deed.pdf


The following are the relevant parts






time hereinafter be paid, transferred and made over by me or any other person to the
Trustees are hereinafter called "the Trust Fund") and the Trustees shall hold the
Trust Fund in Trust for the following purposes:-
(ONE) For payment out of income or capital as the Trustees may decide ,the
expenses of setting up and administering the Trust hereby created;
(TWO) 1- direct the Trustees to hold the Trust Fund for one or more of the
following, namely: (l) my natural children (but specifically excluding any
step-children); (2) any person who is or was a spouse of any of my said
natural children; (3) any trust established by any person for the benefit
(whether of an income, a capital or a discretionary nature) of anyone or
more of the foregoing persons but always excluding a trust of which
either I or during my lifetime any spouse of mine is or may be a
beneficiary; (4) all as the Trustees may in their absolute discretion by
minute or minutes at any time or times determine, and that in such shares
or proportions if more than one as the Trustees shall decide; Declaring
(1) that the Trustees may by such minute or minutes create vested
interests in the fee, interests in possession or prospective or contingent
interests of any kind, in the Whole or any part or parts of the Trust Fund

and that subject to such provisions, conditions or restrictions, including
but without prejudice to the foregoing generality provisions as to the
accumulation of income, the vesting of capital in any beneficiary and the
granting to any beneficiary of powers to appoint rights to income or
capital, as they may in their sole discretion determine; (2) that during the
period of Twenty One years from the date hereof or until the date when
any such determination or determinations take effect, the Trustees may
accumulate all or any part of the income of the Trust Fund and hold the
same as an accretion to the capital thereof, and subject thereto the
Trustees shall distribute the income of the Trust Fund to such one or
more of the beneficiaries as they may in their absolute discretion
determine; (3) that there shall be no apportionment of revenue accruing
from any part of the Trust Fund between income and capital on any
occasion, all revenue being deemed to have accrued on the date upon
which it is payable;
(THREE) If any part of the Trust Fund falls to a beneficiary who has not attained
the age of Eighteen years the Trustees shall have full power either to pay
or apply the whole or any part of the income or capital falling to such
beneficiary for his or her behoof in any manner the Trustees may think
proper or to retain the same till the said age of Eighteen years is attained
accumulating income with capital or to pay over the same to the legal
guardian or the person for the time being having the custody of such
beneficiary whose receipt shall be a sufficient discharge to the Trustees,
and any such part shall be regarded as being part of the Trust Fund for
the purposes of the Trustees' Powers and Immunities purposes hereof;
(FOUR) The Trust Fund and the income therefrom shall at all times be possessed
and enjoyed to the entire exclusion of me and during my lifetime any
spouse of mine and of any benefit to me or during my lifetime to any





Expert:  JGM replied 2 years ago.
Thank you for your help and for posting the extract from the Deed of Trust. Unless you have the trustees in agreement you can't end the trust. In terms of the Trusts (Scotland) Act 1921 the trustees can apply to the court to distribute the capital of the trust:

"17. Trustees may apply to court for superintendence order as to investment and distribution
of estate.
It shall be competent for the trustees under any trust deed or one or more of them to apply to the
court for an order on the accountant of court to superintend their administration of the trust in so
far as it relates to the investment of the trust funds and the distribution thereof among the creditors
interested and the beneficiaries under the trust, and the court may grant such order accordingly,
and if such order be granted the accountant of court shall annually examine and audit the accounts
of such trustees, and at any time, if he thinks fit, he may report to the court upon any question that
may arise in the administration of the trust with regard to any of the foresaid matters and obtain
the directions of the court thereupon."

However there is no provision for the potential beneficiary of a discretionary trust to insist that that the trust be wound up, I'm afraid.
Customer: replied 2 years ago.
I think I made it clear at the beginning that the beneficiaries are in agreement.
Also I came across this

1. Variation or Termination of Private Trusts by Beneficiaries
In Scotland where all beneficiaries of a private trust are of full age (18 or over) and capacity, and no trust purposes exist which require retention of the property and hence continuation of the trust, the beneficiaries may agree amongst themselves to either vary or terminate the trust. Neither the truster nor the trustees have any veto.
Expert:  JGM replied 2 years ago.
The fact that the beneficiaries are in agreement is irrelevant.

Do the trust purposes no longer exist? From what I have been told so far, the purpose of the trust is to provide income to the potential beneficiaries.

Also remember this is a discretionary trust. There are no beneficiaries unless the trustees decide to make them beneficiaries and these kind of trusts are very very hard to break.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9985
Experience: 30 years as a practising solicitor.
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