Frequently Asked Questions SSP2
A First
edition or second edition?
A1 Does SSP2 repeal
or supersede the first edition?
No. The first edition remains in effect
if it is incorporated into a will or settlement, whenever made.
A2 Where an
individual has already executed their Will, can the executors opt
to use SSP1 or SSP2?
A will should incorporate by reference only a
document that was in existence at the date of execution. SSP2
was formally adopted by the Society on 16th April 2011.
It is therefore possible for a will made now to incorporate
SSP2. Which provisions are incorporated depends entirely on
the terms of the document. See in particular SSP2 Provision 1
for the rules for incorporation of SSP2.
A3 Can I simply carry
on using the first edition?
Yes, though we would recommend switching to
the second edition.
A4 Can clients be
asked when they update their wills whether they want to include the
second edition?
Yes.
A5 With
existing trusts, is variation possible (to replace reference with
first to second provisions)?
The variation would in principle be possible,
with the consent of all the beneficiaries and/or the consent of the
Court, but it will generally be easier to leave the first edition
to continue in effect.
B
Incorporating SSP2
B1 Can I choose to
include the “core” provisions of SSP2 only?
Yes: see provision 1.1.
B2 If I do choose to
include only the “core” provisions am I ignoring the Special
Conditions?
It is hoped that you are not “ignoring” the
Special Conditions; rather that you are making a decision not to
include the Special Conditions, which do not suit the circumstances
or wishes of every client.
B3 If I include just
the core provisions and ignore the Special Provisions can the
trustees have access to the Special Provisions at a later
date?
No. The decision should be made at the
time of preparing the document.
B4 Can I include SSP2
including the Special Provisions, providing I make reference to
their inclusion in the Will?
Yes: see provision 1.3.
B5 We can use the
forms in clause 1 to incorporate the Second Editions into our
Wills. However, if we refer to the Provisions in our Wills /
Trusts before the Practice Direction (mentioned in the
introduction) is published, we may need to provide a full edition
of the Provisions as well as the Will to obtain a Grant of
Probate. What is the Society doing about this?
Arrangements have been made to obtain an
appropriate Practice Direction and members will be notified when
that is obtained.
B6 Our definition of
the STEP Provisions was recently amended in our Wills and trusts to
include “any subsequent updates or amendments to the
Provisions.” (This was done in anticipation of the new second
edition, so it could be used when published). The Provisions
cover such amendments at para 13 and I note that trustees require a
deed to change from the second to any future third or subsequent
edition. We also do not have that clause in our Wills or
Trusts. I was concerned whether our amendments were
sufficient automatically to include the second edition into our
current documents (e.g. those executed before the Provisions were
published, but with provision to include any subsequent updates or
amendments to the first edition). Should we be worried about
this?
It is best to incorporate the second edition,
using the wording set out in SSP2 clause 2; and in the event of a
future third edition, to adopt the procedure set out in SSP2
Provision 13.
C
Miscellaneous
C1
Suppose the trust has a disabled beneficiary at the time it takes
effect: will a trust incorporating the Standard Provisions meet the
requirements of s89 Inheritance Tax Act 1984 (disabled
trusts)?
This topic is discussed in Drafting Trust
and Will Trusts A Modern Approach 10th edition
chapter 27. The issue has been highlighted in the decision of
the Court of Appeal in Re Poppleston, Barclays Bank Trust
Company v HMRC [2011] EWCA Civ 810, where the Court
interpreted a will for the benefit of a disabled son loosely and
purposively, so as to meet the requirements of s.89; the Court
relied in part on a clause similar to Provision 3 of SSP2.
Wherever there is a beneficiary who is
disabled (within the meaning of the IHTA) the drafter should
consider specifically whether it is desired to draft the will so as
to meet the conditions of s.89 IHTA or not to do so, and draft the
will accordingly.
C2
Provision 4.4 talks about “depreciation of the capital value” of
property. Does that mean that if a shareholding goes down the
trustees can make good the loss out of income?
The clause is not intended to cover
fluctuations in the value of marketable securities. As is
implied by the second sentence of 4.4, the situation that is here
addressed includes making good the gradual and inevitable loss in
value of wasting assets such as leases.
C3 A
trustee can be paid under clause 10, but what if he does not do the
work personally but gets his firm to do it? Can the firm
charge?
Yes, see the Guidance paragraph 10. It
is considered that s29 Trustee Act 2000 is wide enough to allow
charging by a partnership or an LLP.
Disclaimer
This FAQ contains only general comments.
The drafting of any particular document is the responsibility of
the drafter. While every care has been taken in the
preparation of this FAQ, STEP and those involved in the preparation
of this guidance do not accept any responsibility for any loss
occasioned by reliance on this guidance.