power of advancement

England, Wales

A power that enables trustees to pay or apply capital to, or for the benefit of, a beneficiary. Trustees may apply capital for the benefit of a beneficiary by creating new trusts for him (a settled advance).

A power of advancement may be statutory or express. The statutory power in section 32 of the Trustee Act 1925 is subject to four restrictions:

• The power can be exercised only in favour of a beneficiary who has an interest in capital (which may be a contingent interest or remainder interest) and not, for example, in favour of a beneficiary who can only benefit if the trustees exercise a discretionary power.

• The power applies only to half the beneficiary's presumptive share of the trust fund, although trust documents commonly extend the power to apply to the whole share.

• Any beneficiary with a prior interest (such as a life tenant) must consent to the exercise of the power.

• Advances must be taken into account when the beneficiaries who receive them later become entitled to capital.

The most common form of express power is a power in an interest in possession trust to pay capital to a life tenant who has no interest in capital.

See also power of appointment.

Related terms

advancement

appointment (of all or part of a trust fund)

power of appointment