CG37887 | Separate settlements: variations of trusts: instrument of variation of will or intestacy

If, however, in a case where there is no such election or statement of intent, the will orintestacy provided for property to be held subject to trusts, and these trusts are variedor replaced by the deed of variation, then there are two questions to be answered.

1. Is there a new separate settlement?

2. If so, who is the settlor of that settlement?

If there are only minor variations clearly there is no new settlement and the deceasedremains the settlor. Minor variations would include for instance changes in theadministrative powers of the trustees, or the provision of an ultimate gift over, that is,a provision saying to whom the property is to pass if the trusts fail, or theappropriation of property to particular funds within the settlement. Otherwise it isnecessary to determine whether there is a new settlement in accordance with the principlesexplained at CG37882, and see CG37889.

If there is a new settlement then the identity of the settlor should be determined inaccordance with CG37900.