discretionary trust

[taxmanUK]

the residue i give to my son desmond and i make two requests to him: that whatever he does NOT want for his own use he gives to my friend Enid and that my other friends who have shared troubled times with me shall share my wine cellar.
is this disposition viable? if not then why? please can you help. thank you for your time to whichever good soul helped answer or read my query may God bless you.

[johnfkavanagh]

The disposition is "viable" but on your death, it will be your son to decide whether he should accede to your wishes.

If it is mportant to you that the parties you mention should benefit under your will, you should consider making specific bequests to them.

John Kavanagh
UK Tax Consulting Ltd
Chartered Tax Advisers
www.uktaxconsulting.co.uk
mail@uktaxconsulting.com

[bob.fraser@towrylaw.]

Please note my comment about the definition of "friends" in my reply to your other question.

[johnfkavanagh]

My understanding of the query is that the querist is leaving the residue of his estate to his son and while he is expressing certain wishes as to how he would like his son to deal with the residue, the expression of those wishes falls short of creating any legal obligation on the son in the form of a secret trust.

I take that view at least partly because it seems to me that there is no certainty of subject matter - in my opinion "whatever (Desmond) does not want" does not constitute an identifiable trust corpus. If there is no trust, it follows that the question of who the beneficiaries would be if there was one is at best academic.

As I said in my earlier contribution, it would be possible to ensure that the friends did benefit by making specific bequests (or by the use of a secret trust). The querist would obviously need legal advice on this.

John Kavanagh
UK Tax Consulting Ltd
Chartered Tax Advisers
www.uktaxconsulting.co.uk
mail@uktaxconsulting.com

[johnfkavanagh]

I suppose that there is an alternative argument that there is a secret trust over the whole of residue but if that is so, then its terms are such that Desmond retains a complete discretion over the trust fund in any case, with the same result as if no trust had been created. Do the lawyers on the forum have any views?

John Kavanagh
UK Tax Consulting Ltd
Chartered Tax Advisers
www.uktaxconsulting.co.uk
mail@uktaxconsulting.com

[taxmanUK]

thank you to all who have replyed very much appreciated.