Memorandum of Wishes

Memoranda are often used to guide or inform trustees of the reason or purpose for setting up a trust.

To what extent should a trustee comply with the wishes recorded by the settlors of the Trust?

In a 2017 Court of Appeal decision, the Court held that Trustees should read and understand the a Memorandum of Wishes to work out what the settlor’s wishes were and then with those wishes in mind, make an independent assessment of the appropriate course of action, taking into account not just the Memoranda , but all relevant factors.

So, that the trustees should not slavishly abide by the Memoranda …they must consider all relevant factors.

If the Memoranda supports the adoption of one course of action, but all other factors support a different course of action which will lead to a better outcome, then the trustees could be sued for not taking the other factors into account in their decision making process.

If you want to discuss the Trust’s existing Memorandum of Wishes, call Scott on DDI 03 9744627