Overriding powers and charitable giving

In the modern age, it is a rare private or family trust that does not contain wide discretionary overriding powers. At the very least, unless expressly excluded, the trustees will have the statutory power to “pay or apply any capital money subject to a trust, or transfer or apply any other property forming part of the capital of the trust property, for the advancement or benefit, in such manner as they may, in their absolute discretion, think fit, of any person entitled to the capital of the trust property or of any share thereof, whether absolutely or contingently … and whether in possession or in remainder or reversion”, albeit the consent of the beneficiary of any prior interest is required (Trustee Act 1925, s32). Prior to 1 October 2014, that power was exercisable (in respect of trusts coming into effect after the 1925 Act) over up to one-half of the beneficiary’s presumptive share only (unless that limitation was excluded, as it is by both editions of the STEP Standard Provisions) but in any trust created or arising since, it will be exercisable over the whole of the beneficiary’s presumptive share.