Discretionary Trust

I hope someone here can help answer a question relating to a matter which I am dealing with as a Trustee of a Discretionary Trust, the object of which is a mentally ill relation. This relation has been requesting income from the Trust, which considering all the factors, ie jeopardising Incapacity Benefit and there being no legal right to demand income, not being the legal owner of the fund etc has sought the services of a solicitor in an attempt to procure funds. The solicitor has been requesting information for which there is no legal requirement for disclosure (Rosewood - Schmidt ruling), under the terms of it being a discretionary Trust. Firstly, if there is no legal requirement to disclose the information, do I have to respond, and, in persuing a matter which is outside the legal parameters, is the solicitor in breach of good conduct by charging a fee for an exercise in futility? Any advice gratefully received. Thank you.

Without seeing the Trust

Without seeing the Trust instrument, letters of wishes etc I cannot give a positive answer. However assuming everything that you have said is factually correct then you do not need to respond. However to not do so will only result in the beneficiary being charged more by the solicitor because he is likely to send further letters to you.

Do you know whether the solicitor that has written to you has had sight of the Trust instrument, letter of wishes etc?

The solicitor is unlikely to be in breach of the code of conduct if he is fully following his client's instructions and he has explained the risks to his client.

I am a Legal Advisor employed by Sarginsons Law and specialise in Civil Litigation matters. I deal with disputes between individuals and businesses including Landlord and Tenant issues, debt recovery and property disputes.

Telephone 02476553181&a

Profile: I specialise in the following areas: All types of civil litigation / dispute resolution including - Wills and Estate Disputes (Challenging Wills, Claims under the Inheritance Act), Property Disputes, Commerical Disputes, Debt Recovery, Residential Landlord and Tenant Disputes (including issuing Housing Act Notices (Section 21 and Section 8) and recovering property for Landlords) Website: www.sarginsonslaw.co.uk Firm: Sarginsons Law LLP

Thank you for your reply. The

Thank you for your reply. The solicitor has had a copy of the Will, accounts, and additional non-discloseable information in the spirit of co-operation and transparency, above and beyond what was requested. 

Unfortunately there was no letter of wishes and the Trust instrument was concise and plain in it's meaning, i.e. absolute discretion, I have absolute free rein according to the will to act as I see fit. I have made an appt with a Trust solicitor with whom I am acquainted and who knows that morally, I do not wish to incur costs for either party. I was just concerned that as the Law states that a beneficiary to a discretionary trust has no legal right to demand anything, that the solicitor would not have dissuaded their client from doing so, and also, regarding fees, I know that my relation is on a very restricted income, and as there is no hope of success for him, I am concerned that this is not in the clients best interest. As any legal fees I incur come out of the Trust, it is a concern for me that his solicitor has taken on the instruction, as I feel that this could be injurous to the client in the broader picture. Another of the Trustees is a chartered accountant, acting for a pittance as he is a decent bloke, and so I know that the accounts and all that jazz are in good fettle, and we have been open and transparent and meticulous in that regard. My relation has a very long history of creating debts and disasters for himself, and in the past the Trust has sorted things out, but this has diminished the pot. At this stage of the game, we are not going to allow any funds to be squandered, but he will not accept that it will interfere with his benefits to recieve funds, that it will diminish the sum available for more constructive future purposes etc. Basically it's like a stroppy child who won't take no for an answer and so has started on a legalistic path. I am confident that my interpretation of Discretionary Trusts is correct as I have spent an extensive amount of time researching everything I can find on the matter, but I always appreciate and value the imput of others. Any further thoughts would be gratefully recieved if there are any points that need to be considered. Thank you.

I would imagine that the

I would imagine that the Trust solicitor will need to write to your relation's solicitor setting out what you have already said.

This should then be an end to the matter. If the solicitor persists you will need to highlight to them that you have fears that they are not acting in the best interests of their client and are causing costs on two fronts, i.e. the fees that your relation is paying direct to his solicitor and the fees that are coming out of the trust fund to deal with this matter.

I am a Legal Advisor employed by Sarginsons Law and specialise in Civil Litigation matters. I deal with disputes between individuals and businesses including Landlord and Tenant issues, debt recovery and property disputes.

Telephone 02476553181&a

Profile: I specialise in the following areas: All types of civil litigation / dispute resolution including - Wills and Estate Disputes (Challenging Wills, Claims under the Inheritance Act), Property Disputes, Commerical Disputes, Debt Recovery, Residential Landlord and Tenant Disputes (including issuing Housing Act Notices (Section 21 and Section 8) and recovering property for Landlords) Website: www.sarginsonslaw.co.uk Firm: Sarginsons Law LLP

Thank you for your swift

Thank you for your swift reply. Yes, I intend to request a letter stating all the salient points, and agree that should further correspondence arise I will raise my concerns. With people who have a mental illness, it is mpossible to precisely gauge whether certain "issues" arise through a genuine lack of mental capacity, or if this is a personality tendency that would exsist even if the illness did not. 

It is reassuring that your feedback reflects my thoughts on this. On the up-side, it has been surprisingly enjoyeable doing the research! Perhaps a post-grad in Law is in order!! I could specialise in peculiar relations.

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