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HMRC internal manual

Capital Gains Manual

Basic terms of trust law as applied to CGT: separate trusts

It is quite common for a clause in a will or settlement to provide that if the preceding trusts of the clause fail, for example, because one person fails to reach a particular age or has no children, then the property is held on the trusts of another clause. In such a situation it could be said that the trusts are not separate. But this cannot be regarded as an absolute rule, particularly in the case of a will. Nevertheless if the possibility of failure of the preceding trust is not remote, and the examples above are not remote, and there is a specific provision for the property to be held on the trusts of the other clause, there is only one settlement.

By way of contrast, particularly in a will, where separate trusts are specified and there is merely a remote possibility that the trusts of one clause might fail with the result that the property falls into residue, it may be accepted that there are separate settlements.

It is quite possible for there to be identical, but separate trusts. If the deed or will provides for an individual or individuals or a charity to take absolutely under more than one clause, that in no way prevents there being several settlements.