The Will of Diana, Princess of Wales - Part 2

 

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

The Vice Chancellor Sir Richard Scott in Chambers

Friday the 19th day of December 1997

IN THE MATTER of the estate of Diana, Princess of Wales deceased

BETWEEN

(1) HIS ROYAL HIGHNESS PRINCE WILLIAM ARTHUR PHILIP LOUIS of WALES (a minor)

(2) HIS ROYAL HIGHNESS PRINCE HENRY CHARLES ALBERT DAVID of WALES (a minor)

Plaintiffs

and

(1) THE HONOURABLE FRANCES RUTH SHAND KYDD

(2) THE HONOURABLE LADY ELIZABETH SARAH LAVINIA McCORQUODALE

Defendants

ORDER

UPON the application of the Plaintiffs by Originating Summons

AND UPON HEARING Counsel for the Plaintiffs and for the Defendants

AND UPON READING the documents recorded on the Court File as having been read

AND UPON the First Defendant by her Counsel consenting to the terms of this Order in her capacity as a person interested in the said estate by reason of a partial intestacy

AND UPON the First Defendant by her Counsel undertaking to join in an election to claim the benefit of section 142(1) of the Inheritance Tax Act 1984 and section 62(6) of the Taxation of Chargeable Gains Act 1992 for the terms of the Arrangement in the Schedule to this Order in her capacity as a person beneficially interested in the said estate

AND UPON the Court being satisfied that the terms of the Arrangement (as defined below) are for the benefit of the minor Plaintiffs

AND UPON the Court being of the opinion that sufficient cause is shown within the meaning of section 1(1) of the Judicial Trustee Act 1896 for the appointment hereinafter made and that no security need be given in respect of that appointment

IT IS ORDERED as follows:

1. In this Order the following expressions bear the meaning hereby assigned to them:

"the Estate'' means the above recited estate
"the Will'' means the last Will of Diana, Princess of Wales dated 1st' June 1993 as varied by a codicil (''the Codicil") dated 1st February 1996
"the Executors" means the Defendants and The Right Reverend and Right Honourable Richard John Carew Chartres, Bishop of London
"the arrangement" means the Arrangement set out in the Schedule to this Order
"the Intellectual Property Rights" means all of the following rights and interests which are or may hereafter become rights or interests owned by the Estate namely all intellectual property rights and interests whether legal equitable or otherwise in or relating to such rights whether joint or sole including but not limited to the following, namely:

(1) copyright in any literary artistic photographic or other work film sound recording or matter of any nature whatsoever and rights in or relating to any designs,

(2) performers' rights and related rights,

(3) trade or service marks and any goodwill, the rights to prevent passing off and similar actionable representations and any like right or interest, including rights to prevent or object to the registration or use of any trade or service mark, name or other sign, and the rights to prevent unfair competition.

(4) moral rights whether so called under the laws of the United Kingdom or otherwise, rights of publicity, privacy or personality, rights in or relating to the name, appearance, likeness, reputation, voice or any other characteristic or feature of Diana Princess of Wales,

(5) rights in or relating to any confidential information (whether in writing or not),

(6) rights to prevent any person from using or claiming any interest in any sign, mark, name or other thing arising out of the name, status or position of Diana, Princess of Wales,

(7) all rights similar, related to or equivalent to any of the above,

(8) all rights to take proceedings and any other action whatsoever in respect of any intellectual property rights (including the rights referred to in subparagraphs (1) to (7) above) and any accrued rights of action,

in each case whether such rights or interests are registered or unregistered, whether arising under the laws of the United Kingdom or of any other country in the world, whether such rights or interests exist or are created in the future and including any renewals extensions or revivals of any such rights or interests

2. The Arrangement is approved on behalf of the Plaintiffs pursuant to section 1 of the Variation of Trusts Act 1958.

3. The Right Reverend and Right Honourable Richard John Carew Chartres, Bishop of London ("the Judicial Trustee") is appointed pursuant to section 1(1) of the Judicial Trustee Act 1896 to be an executor of the Will jointly with the Defendants.

4. Subject to further Order the Judicial Trustee shall be under no obligation to furnish annual accounts to the Court.

5. All the assets of the Estate presently vested in the Defendants as executors of the Will, or to the benefit of which they are presently or prospectively entitled in that capacity shall vest in the Defendants and the Judicial Trustee jointly to be held by them upon the trusts of the Will as varied by this Order and without prejudice to the generality of the foregoing this vesting order shall comprehend

(1) The right to sue for and recover any thing in action or any interest in respect thereof including without prejudice to the generality of the foregoing all existing and future causes of action and all other entitlements arising out of or in respect of the Intellectual Property Rights

(2) The rights of the Defendants to assign, licence, sublicence, grant rights to sue in respect of, make applications for, prosecute the application for, register, oppose the registration by others of, enforce, or otherwise deal with the Intellectual Property Rights in any manner whatsoever

(3) The right to possession of all chattels

(4) The right to transfer all stock shares and other investments and the right to receive all dividends and other income or capital accruals in respect thereof.

6. The Defendants shall cause to be endorsed on the grant of Probate of the Will and Codicil, as and when granted, a Memorandum of this Order.

7. The Defendants are authorised and directed to elect to claim the benefit of section 142(1) of the Inheritance Tax Act 1984 and section 62(6) of the Taxation of Chargeable Gains Act 1992 for the terms of the Arrangement both on their own behalf as executors and on behalf of the Plaintiffs.

8. All the costs incurred by the next friend of the Plaintiffs since 30th October 1997 in representing the Plaintiffs' interests in connection with the administration of the estate, including the costs of and incidental to this application (and including the costs incurred in the preparation and negotiation of the Arrangement) shall be taxed on the indemnity basis unless agreed with the Executors and paid out of the estate in the course of administration. The hearing of this originating summons is certified fit for three Counsel for the Plaintiffs.

THE SCHEDULE

THE ARRANGEMENT

As from the date of this Order the Estate shall be administered and the trusts of the Will executed on the footing that the deceased died leaving a will and codicil in the terms of the Will and Codicil but subject to the following modifications to the Will.

Clauses 4 to 7 inclusive and Clause 10 and the Schedule to the Will shall be deleted and replaced by the following provisions. Clauses 8 and 9 of the Will shall be renumbered 14 and 15

4.

(1) I bequeath to my butler Paul Burrell the sum of 50,000 free of inheritance tax.

(2) I bequeath to my Executors jointly free of inheritance tax the chattels described in Part I of Appendix I below to be held by them upon trust within 12 months of the date of my death to distribute all or such of the said chattels as they may in their absolute discretion select among such one or more of my Godchildren (whose names appear in Part II of Appendix I) as my Executors may in their absolute discretion think fit.

(3) In the execution of the power conferred by sub-clause (2) above my Executors shall be entitled to rely on the receipt of a parent or guardian of any Godchild who is a minor.

(4) All expenses for the sate custody of and insurance incurred prior to their distribution of the said chattels and for packing transporting and insurance for the purposes of deliver to the respective recipients of any chattels distributed shall be borne by my residuary estate.

(5) Any of the chattels referred to in the previous subclause which have nor been distributed within 12 months of the date of my death shall be held by my Executors on the trusts of the Residuary Fund, as defined below.

5.

(1) I bequeath to my Trustees (as defined below) free of inheritance tax the assets described below as comprising the Discretionary Fund to be held by them upon the trusts and with and subject to the powers and provisions hereinafter declared.

(2) In this clause the following expressions bear the meanings assigned to them below:

"my Trustees" means the persons appointed by this Will or any codicil thereto to be my Executors, together with the Right Reverend and Right Honourable Richard John Carew Chartres, Bishop of London or other the trustee or trustees from time to time of the Discretionary Fund
"Charity" means any trust or body corporate whose objects are exclusively charitable according to the law of England and Wales
"Charitable Object" means any object exclusively charitable according to the law of England and Wales
"The Intellectual Rights" means all of the following rights or interests to which I am or may become entitled or which may accrue to my estate after my death namely all intellectual property rights and interests whether legal equitable or otherwise in or relating to such rights whether joint or sole including but not limited to the following namely

(1) copyright in any literary artistic photographic or other work film sound recording or matter of any nature whatsoever and rights in or relating to all designs,

(2) performers' rights and related rights,

(3) trade or service marks and any goodwill, the rights to prevent passing off and similar actionable representations and any like right or interest, including rights to prevent or object to the registration or use of any trade or service mark, name or other sign, and the rights to prevent unfair competition,

(4) moral rights whether so called under the laws of the United Kingdom or otherwise, rights of publicity. privacy or personality, rights in or relating to my name, appearance, likeness, reputation, voice or any other of my characteristics or features

(5) rights in or relating to any confidential information (whether in writing or not),

(6) rights to prevent any person from using or claiming any interest in any sign, mark, name or other thing arising out of my name, status or position as Diana, Princess of Wales,

(7) all rights similar, related to or equivalent to any of the above,

(8) all rights to take proceedings and any other action whatsoever in respect of any intellectual property rights (including the rights referred to in sub-paragraphs (1) to (7) above) and any accrued rights of action,

in each case whether such rights or interests are registered or unregistered, whether arising under the laws of the United Kingdom or of any other country in the world, whether such rights or interests exist or are created in the future and including any renewals extensions or revivals of any such rights or interests

"The Discretionary Fund Intellectual Property Rights" means the Intellectual Property Rights with the exception of any and all such rights or interests in or relating to the following namely:

(i) chattels forming part of my estate (excluding any works which have already been published at the date of my death)

(ii) personal property which at the date of my death is owned legally equitably or otherwise by either of my two sons, Prince William, who was born on 21st June l 982, and Prince Henry, who was born on 15th September 1984

(iii) the copyright and all other intellectual property rights and interests in my signature when used as part of any document created by me where that document is comprised in (i) or (ii) above

"The Discretionary Fund" means

(i) the Discretionary Fund Intellectual Property Rights

(ii) all my wearing apparel

(iii) the sum of 100,000

(iv) any accumulations of income of the Discretionary Fund

(v) any money or investments from time to time representing the foregoing items

"The Discretionary Beneficiaries" means

(i) my two sons, Prince William, who was born on 21st June 1982, and Prince Henry, who was born on l5th September 1984

(ii) the children and remoter issue, spouses and former spouses of my two sons and

(iii) such Charities and Charitable Objects as my Trustees from time to time select

"The Perpetuity Period" means the period commencing with the date of my death and expiring 21 years after the death of the last surviving descendant of his late Majesty King George VI living at the date of my death

(3) During the Perpetuity Period my Trustees shall apply the income of the Discretionary Fund and may pay or apply any part of parts of the capital thereof to or for the benefit of all or such one or more to the exclusion of the other or others of the Discretionary Beneficiaries if more than one in such shares and in such manner generally as they shall in their absolute discretion think fit.

(4) During the period of twenty-one years from the date of my death my Trustees shall have power instead of paying or applying the income of the Discretionary Fund in accordance with the preceding clause to accumulate it, and all such accumulations shall be treated as accretions to the capital of the Discretionary Fund for all purposes.

(5) Without prejudice to any prior payment or application of income or capital my Trustees shall have power at any time or times during the Perpetuity Period by deed or deeds revocable or irrevocable to appoint that the capital and income of the Discretionary Fund or any part thereof shall be held upon with and subject to such trusts powers and provisions in favour or for the benefit of all or such one or more to the exclusion of the other or others of the Discretionary Beneficiaries if more than one in such shares and in such manner generally as my Trustees may in their absolute discretion think fit And so that without prejudice to the generality of this power my Trustees may in the exercise thereof and subject to the rules against remoteness

(a) create or delegate powers and discretions over capital or income (including powers of further delegation) whether of a dispositive or administrative nature and whether exercisable by my Trustees or any other person or persons in the same unrestricted manner as if they were absolute beneficial owners of the property thereby appointed; and

(b) transfer all or any part of the capital or income of the Discretionary Fund to the trustees of any other trust or settlement under which the settled property subject thereto is held on trusts for the benefit of all or any one or more of the Discretionary Beneficiaries.

(6) Subject to the exercise of the foregoing powers my Trustees shall hold the Discretionary Fund at the expiry of the Perpetuity Period on trust for Prince William and Prince Henry, in equal shares absolutely.

(7) Without prejudice to the generality of the powers conferred by sub-clauses (3) and (5) above my Trustees may, with a view to applying some or all of the Discretionary Fund Intellectual Property Rights or the income therefrom for the benefit of a Charity, exercise the powers conferred on them by paragraph (28) of Appendix II below by entering into arrangements with the Charity in question, or with some other Charity, under the terms of which the Discretionary Fund Intellectual Property Rights subject to the arrangement can be exploited for the benefit of the Charity intended to benefit on terms such that the Discretionary Fund receives either no consideration or a consideration less than the full consideration obtainable having regard to the value or the benefit of the arrangement to the Charity in question.

(8) In the execution of the foregoing trusts my Trustees shall, in addition to any powers conferred on them by the general law, have the benefit of the powers and immunities set out in Appendix II below Provided Always that none of the said powers shall be capable of being exercised in such a way as would be in any way inconsistent with the beneficial trusts from time to time subsisting in respect of the Discretionary Fund

(9) My Trustees (being not less than two in number or a trust corporation) may at any time or times before the expiry of the Perpetuity Period by deed extinguish (or restrict the future exercise of) all or any of the powers contained in this clause 5 and all or any of the additional powers (but not any of the restrictions applicable thereto) contained in Appendix II

6. I give all my property not hereby or by any codicil hereto otherwise effectively disposed of to my Executors to hold on trust to sell call in and convert the same into money (so far as not already consisting of money) with power to postpone the sale calling in and conversion thereof (even as regards property of a terminable hazardous or wasting nature) in the absolute discretion of my Executors without being liable for loss and to hold the net proceeds and my ready money upon the following trusts:

(1) Upon trust to pay thereout (in exoneration of any property which would otherwise be liable for payment of the same) all funeral and testamentary expenses and debts and any general legacies given by this Will or any Codicil hereto and any tax or duty arising in respect of my death (even if not a testamentary expense) on all gifts in this Will and any Codicil hereto given free of such tax or duty

(2) Upon trust if necessary to invest the remainder after such payment in or upon any investments authorised by the provisions of Appendix II below

(3) Upon trust to stand possessed of such investments and such of my estate as remains for the time being unsold and my ready money and all property from time to time representing the same (hereinafter referred to as "my Residuary Estate") upon trust for my Trustees, to be held by them on the trusts declared by clause 8 below.

7. In the event of the assets subject to clause 6 above being insufficient to meet all of the liabilities referred to in clause 6(1) the settled legacy on the trusts of the Discretionary Fund made by clause 5 above shall abate in priority to and in exoneration of the legacies given by clause 4 above.

8. (1) In this clause the following expressions bear the meanings assigned to them below:

"my Trustees" means the persons appointed by this Will or any codicil thereto to be my Executors, together with The Right Reverend and Right Honourable Richard John Carew Chartres, Bishop of London or other the trustee or trustees from time to time of the Residuary Fund (and where separate trustees have been appointed of the Principal Beneficiaries' shares or presumptive shares in the Residuary Fund "my Trustees" shall refer to each body of separate trustees)
"The Residuary Fund" means

(i) my Residuary Estate

(ii) any accumulations of income made pursuant to the trusts declared below

(iii) any money or investments from time to time representing the foregoing items

"The Principal Beneficiaries" means Prince William and Prince Henry
"The Perpetuity Period" means the period commencing with the date of my death and expiring 21 years after the death of the last surviving descendant of his late Majesty King George VI living at the date of my death

(2) My Trustees shall hold the Residuary Fund and the income thereof upon trust for such of the Principal Beneficiaries as shall either:

(a) attain the age of 25 years or

(b) die under the age of 25 years leaving a child or children living (or en ventre sa mere) at his death

and if more than one in such shares as my Trustees (being at least two in number or a trust corporation) shall by any deed or deeds revocable or irrevocable executed so as to comply with sub-clause (3)(c) below appoint and until and subject to and in default of any such appointment in equal shares.

(3) Subject to sub-clause (c) of this sub-clause any appointment made in exercise of the power conferred by sub-clause (2) above:

(a) may provide for any share or shares in the Residuary Fund to be ascertained either by reference to a fraction or fractions of the Residuary Fund or by reference to any sum or sums of money or by reference to (or to the value of) any specific assets then forming part of the Residuary Fund and

(b) may (if my Trustees think fit) expressly provide that the whole or any part or parts of the accumulations of income then forming part of the presumptive share of one Principal Beneficiary in the Residuary Fund shall thereafter go and accrue to and form part of the presumptive share of the other Principal Beneficiary in the Residuary Fund But in default of any such express provision all such accumulations of income shall continue to belong to the presumptive share to which they solely belonged immediately prior to such appointment

(c) No appointment in exercise of the power conferred by sub-clause (2) of this clause shall be made and no such appointment shall be revoked either:

(i) so as either to diminish or to increase the share (or the accumulations of income forming part of the share) of or give a new share (or new accumulations of income) to a Principal Beneficiary who at the date of such appointment or revocation has attained the age of 25 years or has died under that age leaving a child or children living (or en ventre sa mere) at his death or

(ii) so as to diminish the share (or the accumulations of income forming part of the share) of a Principal Beneficiary who is under the age of 18 years, or, without his prior consent in writing, the share of a Principal Beneficiary who has attained that age.

(d) My Trustees (being, at least two in number or a trust corporation) may at any time or times by deed or deeds extinguish (or restrict the future exercise of) the said power of appointment conferred by sub-clause (2) hereof

(e) The provisions of sub-clause (5) below are applicable (in the manner therein mentioned) to the share in the Residuary Fund of each Principal Beneficiary who attains a vested interest under sub-clause (2) above.

(4) The foregoing trusts shall carry the intermediate income and the following provisions relating to maintenance and accumulation shall apply to the income of the presumptive share for the time being of each Principal Beneficiary who is alive and under the age of 25 years namely:

(a) my Trustees shall have power to pay or apply the whole or such part (if any) of such income as my Trustees in their absolute discretion shall think fit for or towards the maintenance or otherwise for the benefit of the Principal Beneficiary in question and

(b) shall accumulate the balance (if any) of the same income at compound interest by investing the same and the resulting income thereof in any of the investments authorised by this Will and shall add such accumulations as an accretion to (and as one fund for all purposes with) the presumptive share in the capital of the Residuary Fund of the Principal Beneficiary in question Provided Always that my Trustees may while a Principal Beneficiary is alive and under the age of 25 years apply such accumulations of income to the extent of his presumptive share in them (or any part thereof) as if they were income arising in the then current year from the presumptive share of that Principal Beneficiary in the Residuary Fund

(5) The share in the Residuary Fund of each Principal Beneficiary (whether under any exercise of the power of appointment herein contained or in default of appointment) shall not vest in him absolutely if he shall attain the age of 25 years or shall die under that age leaving a child or children living (or en ventre sa mere) at his death (as the case may be) but on and after the attainment of such age or on and after such death (as the case may be) such share shall be retained by my Trustees upon and with and subject to the following trusts powers and provisions or (in particular where the Principal Beneficiary has died as aforesaid) such of the same as are capable of taking effect namely:

(a) The share of each Principal Beneficiary shall be held upon trust to pay the income thereof to such Principal Beneficiary during his life

(b) Each Principal Beneficiary shall after he has attained the age of 25 years have power (due regard being had to the law concerning remoteness) to appoint by any deed or deeds revocable or irrevocable or by will or codicil to or for the benefit of his widow an interest in the whole or any part of the income of his share during the remainder of the life of such widow (whether or not such widow shall have remarried) or for any less period and any such appointment may be made upon protective trusts or otherwise for the benefit of such widow and subject to any conditions which such Principal Beneficiary may think proper

(c) Subject as hereinbefore provided in this clause the share of each Principal Beneficiary shall be held (both as to the capital and income) upon with and subject to such trusts powers and provisions in favour or for the benefit of all or such one or more to the exclusion of the other or others of the children or remoter issue of the Principal Beneficiary and if more than one in such shares and in such manner generally as the Principal Beneficiary may by deed or deeds revocable or irrevocable or by will or codicil in his absolute discretion appoint And so that without prejudice to the generality of this power he may in the exercise thereof and subject to the rules against remoteness

(i) create or delegate powers and discretions over capital or income (including powers of further delegation) whether of a dispositive or administrative nature and whether exercisable by my Trustees or any other person or persons in the same unrestricted manner as if he was the absolute beneficial owner of the property thereby appointed and

(ii) transfer all or any part of the capital or income subject to the appointment to the trustees of any other trust or settlement under which the settled property subject thereto is held on trusts for the benefit of all or any one or more of the said children or remoter issue

(d) Subject as hereinbefore provided in this clause the share of each Principal Beneficiary shall be held (both as to capital and income) upon trust for all or any of the children or child of the Principal Beneficiary as shall attain the age of 21 years and if more than one in equal shares absolutely Provided that no child of the Principal Beneficiary who or whose issue shall take any part of the share of the Principal Beneficiary under an appointment by virtue of the power last hereinbefore conferred shall in default of appointment to the contrary be entitled to any share of the unappointed part thereof without bringing the part or parts appointed to him or to his issue into hotchpot and accounting for the same accordingly

(e) The trust contained in sub-clause (d) hereof shall (subject to the preceding trusts powers and provisions of this Will) carry the intermediate income and the statutory powers of maintenance accumulation and advancement contained in Sections 31 and 32 of the Trustee Act 1925 shall apply thereto but with the following modifications:

(i) in the case of the said Section 31 with the substitution in sub-section (1)(i) thereof of "the trustees in their absolute discretion think fit" for "may in all the circumstances be reasonable" and the omission of the provision to sub-section (1)

(ii) in the case of the said Section 32 the omission of the words "one-half of" from proviso (a) to sub-section (1) and the omission of sub-section (2) Provided always that any capital which is applied for the benefit of a beneficiary under the said section 32 at any time before such beneficiary has an interest in possession in that capital shall not be capable of being applied in any manner inconsistent with the requirements of conditions (a) and (b) of Section 71(1) of the Inheritance Tax .Act 1984 (or any statutory modification or re-enactment thereof)

(6)

(a) Notwithstanding the trusts powers and provisions herein before contained (but subject as provided in sub-clause (b) of this sub-clause) my Trustees may at any time or times during the lifetime of a Principal Beneficiary pay or transfer to or apply for the benefit of such Principal Beneficiary the whole or any part of the capital of his share or presumptive share in the Residuary Fund freed and discharged from all the trusts powers and provisions of this Will (and so that any capital so paid or transferred or applied shall be brought into account at its value at the date of payment transfer or application in any division of the Residuary Fund into shares) Provided always that any capital which is applied for the benefit of a Principal Beneficiary under the foregoing power at any time before such Principal Beneficiary has attained the age of 25 years shall not be capable of being applied in any manner inconsistent with the requirements of conditions (a) and (b) of Section 71(1) of the Inheritance Tax Act 1984 (or any statutory modification or re-enactment thereof) and

(b) My Trustees (being at least two in number or a trust corporation) may at any time or times after a Principal Beneficiary has attained the age of 18 years and with his consent in writing by deed or deeds extinguish (or restrict the future exercise of) the power conferred by sub-clause (a) of this sub-clause so far as it affects or is capable of affecting the share or presumptive share in the Residuary Fund of that Principal Beneficiary

(c) After a Principal Beneficiary has attained the age of 30 years my Trustees shall be bound in the exercise or non-exercise of the power conferred by sub-clause (a) above to comply with his wishes from time to time communicated to them in writing unless my Trustees are satisfied that there is some exceptional reason why it is in the Principal Beneficiary's interests that his wishes should not be complied with (the Principal Beneficiary being entitled to be supplied with written reasons for that conclusion)

(d) No power of advancement shall apply to the trusts declared by sub-clause (2) above other than that contained in this sub-clause.

(7) Subject to the trusts powers and provisions engrafted thereon by sub-clause (5) above and subject also to sub-clause (6) hereof the share in the Residuary Fund (whether under any exercise of the power of appointment contained in sub-clause (2) hereof or in default of appointment) of each Principal Beneficiary who attains the age of 25 years or who has died under the age of 25 years leaving a child or children living or en ventre sa mere at his death (as the case may be) if and so far as not disposed of by such engrafted trusts powers and provisions or previously paid or applied (except merely by accumulation) thereunder or under sub-clause (6) above shall:

(a) go and accrue for all purposes to the share (whether presumptive or vested) of the other Principal Beneficiary if the trusts thereof are then subsisting (including any share to which any person or persons is or are then entitled absolutely) and

(b) be held upon the trusts and with and subject to the powers and provisions herein contained concerning the original share of that other Principal Beneficiary

(8) In the event of the failure in whole or in part of any of the foregoing trusts my Trustees shall have power during the Perpetuity Period to pay or apply all or part of the Residuary Fund, or that part the trusts of which have failed, and the income thereof, to or for the benefit of all or such one or more of the following, class of beneficiaries and in such shares, if more than one, as they shall in their absolute discretion think fit namely:

(a) such of Her Majesty Queen Elizabeth II her children and remoter issue as are living at the date of the failure of the trusts in question

(b) such of the children and remoter issue of the late Edward John 8th Earl Spencer as are living at the date of the failure of the trusts in question

(c) any Charity then in existence and subject to any exercise of the foregoing power the capital and income of the Residuary Fund shall be held upon trust for Her Majesty Queen Elizabeth II absolutely

(9) In the execution of the foregoing trusts my Trustees shall, in addition to any powers conferred on them by the general law, have the benefit of the powers and immunities set out in Appendix II below Provided always that none of the said powers shall be capable of being exercised in such a way as:

(a) would be in any way inconsistent with the beneficial trusts from time to time subsisting in respect of the Residuary Fund

(b) would or might present an interest in possession of any beneficiary from subsisting or continuing to subsist in the whole or any part of the Residuary Fund in any case where such an interest otherwise would subsist or continue to subsist or

(c) would prevent Section 71 of the Inheritance Tax Act 1984 (or any statutory modification or re-enactment thereof) from applying in respect of the whole or any part of the Residuary Fund in any case where that section (or modification or re-enactment thereof otherwise would so apply

(10) My Trustees (being not less than two in number or a trust corporation) may at any time or times before the expiry of the Perpetuity Period deed extinguish (or restrict the future exercise of all or any of the additional powers (but not any of the restrictions applicable thereto) contained in Appendix II

9. In the administration of my estate and in the execution of the trusts declared by this Will:

(1) all income shall be treated as accruing on the date on which it becomes payable regardless of the period in respect of which it shall have accrued and it shall not be the subject of any statutory apportionment and

(2) the equitable rules of apportionment between capital and income shall not apply in any circumstances whatever and in particular shall not apply to any assets in respect of which my trustees have not made any deliberate decision to postpone the sale thereof.

10. The powers conferred on my Trustees by clauses 5 and 8 (including the powers set out in .Appendix II hereto) above may be exercised by them at any time after the date of my death notwithstanding that no grant of probate has then been obtained or that the administration of my estate has not then been completed.

11. In the professed administration of my estate and in the professed execution of the trusts of this Will none of my Executors or Trustees shall be liable for any act or omission of his or for any act or omission of any co-Executor or co-Trustee of his or for any agent employed in the administration of my estate or the execution of the said trusts save for any act or omission involving wilful fraud or dishonesty committed by the Executor or Trustee sought to be made liable.

12. Any of my Executors or Trustees who shall be an individual engaged or employed in any profession or business either alone or in partnership shall be entitled to charge and be paid and to retain all professional or other proper charges for any business done or time spent or services rendered by him or his firm (whether or not within the usual scope of his profession or business and even if not of a nature requiring the employment of a professional or business person) in connection with the administration of my estate or with the trusts powers and provisions of this will and shall also be entitled to retain any share of brokerage or commission paid to him or his firm by any broker agent or insurance office in connection with any acquisition of or dealing with any investments or property or the effecting or payment of any premium on any policy of insurance subject or intended to become subject to the trusts hereof or any such assurance.

13.

(1) Subject to sub-clause (4) below the statutory power of appointing new or additional trustees of my Will shall be vested in my Trustees.

(2) In the exercise of the said power my Trustees may appoint separate trustees of the Discretionary Fund and/or the Residuary Fund, and within the Residuary Fund they may appoint separate trustees (who may include one or more of themselves) of the share or presumptive share of each Principal Beneficiary.

(3) In the event of separate trustees of part only of the property subject to the trusts of this Will being appointed, the statutory power of appointing new or additional trustees of the trusts affecting that part of such property shall, subject to sub-clause (4) below, thenceforth be vested in the trustees from time to time of that part.

(4) After he has attained the age of 30 years:

(a) the power of appointing new or additional separate trustees of a Principal Beneficiary's share of the Residuary Fund shall be vested in that Principal Beneficiary; and

(b) that Principal Beneficiary shall have power by written notice to the persons who are for the time being the trustees of that Principal Beneficiary's share of the Residuary Fund to require all or any one or more of them to retire from the trusteeship of that share and, subject to the consent of such persons, each person so required to retire shall at the request of the Principal Beneficiary execute an appropriate deed of retirement or an appropriate deed appointing a new trustee or new trustees of that share;

Provided that if no separate trustees of that Principal Beneficiary's share have previously been appointed the making of any appointment under this power shall take effect as if immediately before it came into effect my Trustees had appointed themselves separate trustees of that share pursuant to sub-clause (2) above

(5) The consent of the trustees of a Principal Beneficiary's share of the Residuary Fund to an exercise of the Principal Beneficiary's foregoing power shall not be withheld unless those trustees are satisfied that there is some exceptional reason why, in the Principal Beneficiary's interests, his appointment should not be consented to (the Principal Beneficiary being entitled to be supplied with written reasons for that conclusion).

(6) The requirement for the trustees consent provided for in sub-clause (4) above shall not prejudice the trustees right to object to the validity or propriety of any attempted appointment by the Principal Beneficiary on any other ground open to them under the general law.

 

Part 1  |   Attachments and Appendix

 

 

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