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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 35056
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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Party A wishes to create a trust declaration over some of her

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Party A wishes to create a trust declaration over some of her equity in her registered home which is subject to a legal charge. The trust is to recognise financial assistance provided over several years (free of any obligation) by her brother. If she does create this:
1. Can she revoke this unilaterally - (a) she may be able to repay him in cash (b) if he dies first she doesn't want the benefit going elsewhere
2. If and when registered at the Land Registry, will it affect any later remortgaging of the property?
Clare
HiThank you for your questionMy name is ***** ***** do my best to help you but I need some further information firstCould you clarify why Party A might wish to withdraw what appears to be a "gift" if her brother dies first?
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Customer: replied 2 years ago.
Not sure it's strictly a 'gift' - she wants to create some recognition of the help already given but just to him - not his heirs etc. Also, ideally she doesn't want het brother to know, for now, tha she's doing this
Would a bequest within a Will not be more appropriate?
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Customer: replied 2 years ago.
Sorry for the delay - there was a problem with the Just Answer site. In answer to your question,I don't think so. How would that provision in Partyy A's Will help if the brother dies first? Party A is hopeful that in a few years, she will be able to return the monies - if the brother wants/needs!. As such, we are mainly concerned with a short/medium term position inter vivos resolution.
I though of the Will option as it will cover the position if A dies before B since it is clear that if B dies first A does not wish the money to go to any of his potential beneficiariesIf she goes with the Declaration of Trust then it can only be revoked with his agreement and it will indeed have an impact on any remortgage.A gift within a Will - which can be amended in the event that the monies are repaid in lifePlease ask if this will not suffice for some reason
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Customer: replied 2 years ago.
Noted. Thanks. Can the trust be 'declared' for a finite period of time, say "for 3 years or until the death of the beneficiary whichever is the sooner"?
Hi
Not without creating an expensive formal trust
Clare
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Customer: replied 2 years ago.
What' 'expensive'? Are you able to review a draft? Thanks. Mike
I will happily review a draft - and thousands.
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Customer: replied 2 years ago.
Hmmmm:-) Let's begin with a draft! This is attached. My questions are:
(1) Would this constitute a valid trust;
(2) Can it be validly deterimined as per draft Clause 4
(3) If the answers to 1 and 2 are 'yes':
(a)
Customer: replied 2 years ago.
12/11/2015 12:50
Hmmmm:-) Let's begin with a draft! This is attached. My questions are:
(1) Would this constitute a valid trust;
(2) Can it be validly deterimined as per draft Clause 4
(3) If the answers to 1 and 2 are 'yes':
(a) are there any obviouls pitfalls and (b) presumabl any new mortgagee woud simpy ask for a deed of postponement by either or both teh trsitee and the Beneficiary
May I ask - and do please be honest - is there a reason for doing this because it will not stand against Bankruptcy; divorce or other debt
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Customer: replied 2 years ago.
Dear Clare, I do not lie or mislead and have been 'honest' - at least not intentionally. The trust is not intended to defeat bankruptcy, divorce, debt or anything else adverse. To be honest, that's all you need to know. Are you now able to answer my last questions. Regards.
Mike
Hi
Having read the draft it simply will not stand as a declaration of Trust if you include paragraph four.
Better to create a separate Legal Charge which would achieve the same result - and could incorporate all the provisions of Paragraph 4
Clare
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Customer: replied 2 years ago.
Hi Clare. Final question: As I see it the draft includes the 4 certainties required of a trust. Why is Clause 4 a problem? It offends no rule either legal or equitable so far as I can see. Cheers
Mike
Slight confusion here
Are we now talking about a position where the brother will be aware of and co-operate in the deed?
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Customer: replied 2 years ago.
Yes
Customer: replied 2 years ago.
.... to clarify! The Trust is intended to be a birthday surprise for the brother (in about 7 week's time) so the idea is that he will only know of it after it's registered. We can expect him to co-operate although nothg in life is certain! Cheers. Mike
Customer: replied 2 years ago.
Hi Clare
Your last full comment was: "Having read the draft it simply will not stand as a declaration of Trust if you include paragraph four".
My substantive response was: "Final question: As I see it the draft includes the 4 certainties required of a trust. Why is Clause 4 a problem? It offends no rule either legal or equitable so far as I can see. Cheers"I shall be pleased to receive your reply
Thanks and best wishes
Mike
Customer: replied 2 years ago.
Dear Clare. I'm not sure what the position now is. As I see it, I'm still waiting to hear from you as to why draft Clause 4 appears to be so damaging or even fatal to te cretaion of the trust. I've now been asked to rate your services but I can't do that until the question is answered. Is there any problem? I'm away for most of today but I hipe to have your answer when I get back. Many thanks in anticipation. All the best. Mike
I am sorry - you fell off my list and disappearedI suspect that it is a matter of semantics between us.Yes that does create a full trust - it is simply not the kind of document that is usually called a Declaration of Trust in terms of Property law.However it can be registered (despite my reservations) It will certainly effect any remortgage - and it is in fact a Trust where the asset is the share of the property - and the Trust must be registered as a joint owner
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Customer: replied 2 years ago.
Thnaks for this. Last bits:-)
(1) How is it that the draft makes the beneficiary a new owner? The deed deals only with the 'equity' - not a legal estate in the property.
(2) Please clarify your 'reservations'.
Thanks
Mike
You wish to Register this Trust.Actually now I think of it - DO you wish to do this?
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Customer: replied 2 years ago.
Hi Clare
Registration need not concern you. We seem to have reached a position where you have agreed that my draft would create an effective trust and one which can be limited and/or validly terminated in the vent of any occurrence as provided for in clause 4. That just leaves the two pints last raised for direct reply. Thank you. Mike
The point of the Trust is to create a position where the property is owned by the Trustees for the benefit of people named in the Trust deedNot sure about the second point - please clarify the question!
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Customer: replied 2 years ago.
Clare - I don't think this was intended for me! Regards. Mike O'Neill
My apologies - I have no idea how that happened - technology defeats me all too often!
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Customer: replied 2 years ago.
I know exactly what you mean - my IT 'stuff' has a life all of its own in which I'm only occasionally allowed to knowingly participate!
What a wonderful way of putting it!
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