A trust is often described as permanent, and permanence is part of its appeal , creditors and claimants cannot simply unwind it, and the property is held for the beneficiaries rather than the settlor. But family circumstances change, and one of the first questions asked years later is whether the structure can be adjusted. The honest answer: it depends on the trust instrument and on how the trust was created.
What does the trust deed say?
The starting point is always the deed. Some trust deeds give the settlor or the trustees express powers to amend the terms, appoint or replace trustees, or revoke the trust within defined limits; others are deliberately framed to exclude unilateral change. Where the deed is silent, amendment is substantially more difficult, and in some cases , particularly where minors are beneficiaries , the court’s sanction is needed before variations can take effect. Reading the deed before assuming anything is the essential first step.
When might revocation be sought?
- a material change in family circumstances , marriage, divorce, the death of a key trustee or beneficiary;
- the trust’s purpose achieved or overtaken by events;
- the structure no longer proportionate to the property it holds;
- deadlock among trustees that the deed’s own mechanisms cannot resolve.
What limits amendment or revocation?
Once property is vested in trustees, it is no longer the settlor’s property to reclaim at will, and beneficiaries with accrued interests are entitled to be heard. Third parties who have dealt with the trust , lenders, buyers, tenants , may hold interests that a restructuring must respect. And where the trust holds registered land, changing the structure is not a paper exercise: fresh transfers, consents and registration follow, which is where conveyancing advice joins the trust file.
How can families avoid the problem?
By drafting with change in mind: amendment powers framed carefully and exercised transparently, successor-trustee mechanisms, and periodic reviews against the family’s actual circumstances rather than the circumstances of the year the deed was signed.
CS Advocates LLP reviews trust deeds and advises on amendments, revocations and restructurings; see our practice areas or read more about the firm. The Trustees (Perpetual Succession) Act and related legislation can be read on Kenya Law.
For guidance on your specific situation, contact CS Advocates LLP , call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.