Articles & Commentary
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04
Jul
2008
2008
Variation of Private Trusts
This is a paper based on a talk given by Derek Francis on behalf of TrustBar (the Faculty of Advocates Trusts Fiduciaries and Executries Bar Group) of which he is chairman to members of Maclay Murray & Spens private client/ taxation departments in Glasgow on 19th June 2008. The paper looks at the nature of trust variation notional agreement with certain consents supplied by the court. It considers whose consents the court may supply; jurisdiction with respect to non-Scottish trusts; where judicial variation is needed where resettlement/ demanding of a denuding is possible/ not possible; situations other than beneficiary incapacity precluding resettlement; the techniques of variation; what is needed by way of instruction/ vouching; situations in which judicial variation may be desirable especially the opportunity extended to October 2008 of creating substitute s. 49C IHTA transitional serial interests; parties and representation; the problems posed by trustees petitioning; the distinction between beneficiaries including defeasible and contingent beneficiaries and those with a spes successionis and which persons with a spes (e.g. as next of kin) require to consent.