Trustee Power of Maintenance: s31 Trustee Act 1925
Section 31 Trustee Act 1925 gives trustees a statutory power to apply trust income for minor beneficiaries — and requires surplus income to be accumulated until they reach 18. Knowing the rules avoids common mistakes in will trusts for children.
s31 at a Glance
| Scenario | What trustees do with income |
|---|---|
| Minor, vested interest | Apply for maintenance; accumulate surplus until age 18; beneficiary gets accumulated income at 18 |
| Minor, contingent interest | Apply for maintenance at discretion; accumulate surplus; at 18 surplus merges into capital |
| Adult, vested interest | Pay income to beneficiary as of right — cannot withhold it |
| Adult, contingent interest | Trustees retain income; apply under discretionary powers; beneficiary has no automatic right |
Frequently Asked Questions
What is the statutory power of maintenance under s31 Trustee Act 1925?
Section 31 of the Trustee Act 1925 gives trustees a statutory power to apply trust income for the maintenance, education, or benefit of a minor beneficiary (someone under 18) who has an interest in the trust — whether the interest is vested (certain) or contingent (dependent on a condition such as surviving to age 25). The power allows trustees to pay trust income directly for expenses such as school fees, living costs, or clothing, without requiring a court order. Trustees have discretion over whether and how much income to apply — they must consider the minor's needs, other available resources, and the interests of other beneficiaries. The power is statutory — it applies automatically unless excluded or modified by the trust instrument or will.
What happens to income that is not applied for maintenance?
Under s31(2) Trustee Act 1925, surplus income that is not applied for maintenance must be accumulated (invested and added to capital) until the beneficiary reaches 18. This accumulation cannot be distributed to any other beneficiary in the meantime — it must be held for the minor. When the beneficiary reaches 18: (1) if their interest is vested (unconditional), they become entitled to the accumulated income and can demand it; (2) if their interest is contingent (e.g. 'if they reach age 25'), the accumulated income continues to be held on the same trusts — it becomes part of capital, and the beneficiary receives the income arising from that date (not the accumulated income) until the contingency is met. The rule in Re Turner's Will Trusts [1937] confirmed that accumulated income merges with capital when a beneficiary's interest remains contingent at 18.
Are adult beneficiaries entitled to trust income?
Yes — once a beneficiary with a vested interest reaches 18, s31(1)(ii) Trustee Act 1925 entitles them to receive the income arising on their share from that point. This applies only where the interest is vested — if the interest is still contingent (e.g. conditional on reaching age 25), the trustees retain the income and can apply it for the beneficiary's benefit under their general trust powers, but the beneficiary has no automatic right to demand it. This distinction between vested and contingent interests is critical: an 18-year-old with a vested interest can insist on receiving income; one with a contingent interest cannot. Trustees should check whether the trust instrument has modified the statutory position.
Can s31 be excluded or modified in a will or trust deed?
Yes — s31 is a default statutory power and can be excluded or modified by express provision in the will or trust deed. Common modifications include: (1) extending the power so trustees can apply income for beneficiaries beyond age 18 (e.g. during higher education); (2) removing the accumulation obligation so that surplus income can be paid to the parents or guardians; (3) restricting the power by requiring trustee consent or specifying permitted categories of expenditure; (4) applying the income 'at the trustees' absolute discretion' to give broader flexibility. Standard professional will drafting clauses often extend or replace s31 to give trustees more flexibility over income distribution — particularly in trusts for minor children or trusts in blended family wills.
How does s31 interact with the rule against accumulations?
Historically, the rule against accumulations (Thellusson Act 1800, later s164 Law of Property Act 1925) restricted the period for which income could be accumulated. The Perpetuities and Accumulations Act 2009 abolished the rule against accumulations for trusts created on or after 6 April 2010, and also abolished the rule against perpetuities period for accumulations. This means for trusts created in wills made in 2010 or later, there is no legal restriction on the period of accumulation — trustees can accumulate for the full trust period without breaching any rule. For older trusts (pre-2010), the accumulation period was limited to the life of the settlor or 21 years. In practice, s31 accumulations (to age 18) are short enough that the rule against accumulations was rarely an issue even before the 2009 Act.
Set Up a Will Trust for Your Children
A will trust with properly drafted maintenance and advancement provisions protects your children's inheritance until they are ready to receive it. The WillSafe kit from £19.97 for England and Wales.