Considering flexible trusts within a will


There are a number of services that make drafting a will and planning what will become of your estate when you die seem easy to do without legal advice and assistance. Wills do, however, need to be very carefully drafted, and getting professional advice from your solicitor can avoid your beneficiaries facing a costly legal battle to prove your intentions in court.

Strict rules governing the way a will is made and executed mean that errors can be made very easily, and these can invalidate it. In particular, the wording of a will can be problematic, as words and terms have specific meanings in law that may differ to the language we all use in day to day life.

Things can often become complicated when considering substitute beneficiaries in case someone you have named as a beneficiary dies before you. It can be difficult to accurately draft various scenarios that you may want to occur in that instance.

It is also worth remembering that your will becomes a matter of public record when it is proved after your death. This means that anyone can look at it and obtain a copy.

For these reasons, and more, many people consider using a flexible trust within their will. Your intentions can then be provided by a letter of wishes that accompanies the will but is not subject to the same strict rules. Indeed, the letter is a private letter from you to your trustees, and enables you to cover a whole range of scenarios in a way that is not possible to do through a basic will.

The flexibility offered by the trust extends to enabling your executors or trustees to deal with your estate in the most tax efficient way at the date of your death, based on the circumstances and tax rules at that time. This avoids you having to try to pre-empt what family members may or may not need in the future, as these decisions are made, following your guidance, after your death. Of course it is also important that you choose people you trust to make these decisions.


Nicola Sunderland is a private client solicitor at Barker Gotelee, solicitors in Suffolk.