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Last updateTue, 24 Feb 2015 5pm

Paul Davies reviews the latest edition of a trusted classic

The latest edition of Drafting Trusts and Will Trusts – a Modern Approach (13th ed) has recently been published and, having accepted the invitation to review this well-known publication I realised I would actually have to read it – not just skim it but read it properly (or most of the chapters at any rate). Although I am familiar with earlier editions of this book I have never read it from cover to cover and I don’t suppose very many people have; after all, I am sure most people would regard the book mainly as a reference book rather than a riveting page turner. That is a pity because having found the time to read it I realise what an educational experience it has been. Furthermore, because it is more readable than most technical publications, reading it did not feel like a great chore. I am not going to try to convince you that this is a book you would want to take away on holiday, but if you did I do not think you would regret it.

Andrew Cousins highlights the practical lessons to be learned from the recent decisions in Barton v Wright Hassall LLP [2016] and OOO Abbott v Econowall UK Ltd [2016]

The courts have recently handed down two independent judgments regarding the service of proceedings and arrived at contrary decisions, coincidentally on the same day. This article examines both judgments and considers if the reasoning is inconsistent and what the decisions mean in practice.

Philip Knight, Helena Davies and Velida Pudic assess the different systems for recovering possession in the two jurisdictions

Many property portfolios have vacant units from time to time: empty buildings awaiting redevelopment or large open areas such as car parks, or yards, without access restrictions. Such spaces are vulnerable to occupation by trespassers. In this context, a trespasser is a person who has entered and remained on land without the consent of the person entitled to possession of it. Trespassers take various forms from travellers to anti-capitalist/anti-fracking protestors, from homeless people to shop squatters.

Thomas Armstrong highlights the problems posed by the registration gap, as well as some practical ways to alleviate them

As is widely known, legal title to land does not formally pass to a transferee of that land until the legal disposition has been registered at the Land Registry – assuming of course that it is a registrable disposition. Although the legal estate remains vested in the transferor, for most parties the deal is done before the ink on the page has dried.

As Parliament hastens to wrap up business before the election, Geoffrey Shindler advocates a careful, considered pace

We must all be grateful that we live in a proper democracy. Not the kind of democracy where 99.9% of the population vote for the sole candidate and the other 0.1% are put up against a wall and shot for not carrying out their democratic obligations. Rather we live in a democracy like the UK where the Finance Bill, actually the second Finance Bill of the last parliamentary session, was published on 24 March with the intention of all stages being passed by both houses by 25 March. That is the kind of democracy that makes us all proud. No doubt the draft legislation was given full attention by our elected MPs and those who sit in the other house. To be fair, why should we? Some of the clauses had already been published in draft a few months ago so there had been an opportunity for those who like a dummy run of these things to have their say. Whether their say had any impact on those who passed the legislation is of course an entirely other matter. Fortunately there did not seem to be much, if anything, to disturb the quiet life of the trust and estate practitioner. Nevertheless the principle is one that is not to be encouraged.

Helena Davies and Pauline Lam explore the current state of the law on boundary disputes and look at the recent findings of a scoping study

Boundary disputes arise on all types of land, from development sites to edges of school playing fields, and from industrial sites to suburban back gardens. The latter location is famously where boundary disputes are most hard fought, and it is fair to say that these disputes can be less about the land (which may have negligible financial value) and more about the hostility that can arise between neighbours.

Nerissa Hatcher reports on the complexities that can arise when a tenant decides to hold over at the end of a fixed term in the context of a recent case

Whether a lease is protected under the Landlord and Tenant Act 1954 affects the position of the parties at the end of the fixed term. While a protected tenancy can continue under statute and the tenant can seek a new lease, an ‘excluded’ or ‘contracted out’ lease will simply end when the fixed term expires.

Rachael Donnelly reviews a recent decision, and considers the parties’ specific obligations in relation to items at the premises at the end of a lease

The classification of an item as a chattel, fixture or part of the land itself can be significant in the context of landlord and tenant disputes, especially those relating to dilapidations. The status of an item will determine whether the tenant may (or is obliged to) remove an item from the premises during or at the end of the term of the lease. If a tenant fails to remove items from the premises or if they remove items that they are not entitled to, then they may find themselves in breach of the yield up or reinstatement provisions in the lease.

Euan McSherry reviews a Scottish case where a business common sense construction triumphed in the interpretation of a terminal dilapidations claim

In the Scottish case of Grove Investments Ltd v Cape Building Products Ltd [2014], Grove (the landlords) and Cape (the tenants) were in dispute as to the construction of the dilapidations provisions of a commercial lease for industrial premises, following the termination of that lease. The Inner House (the part of the Court of Session which acts as a court of appeal for cases from the lower Scottish courts and certain tribunals) was of the view that it was not permitted to correct ‘a bad bargain’, and that, where a contractual provision is capable of more than one meaning, it should adopt the meaning that best accords with commercial common sense. It is a familiar line of judicial reasoning that will resonate comfortably with those involved in advising on lease interpretation.

Geoffrey Shindler gives his view on the proposed raising of inheritance tax to a £1m threshold

David Cameron’s recent utterances about inheritance tax reminded me of that well known US predecessor to Eric Cantona, the baseball legend Yogi Berra, whose famous statement that this is ‘Déjà vu all over again’ came to mind recently.

Geoffrey Shindler has an unwelcome springtime message for the post-baby-boomers

How sorry should we feel for people born at ‘the wrong time’? What is the wrong time you might ask? Well it appears that I was born in the right time. What that means is that the guns were raging over El Alamain when I appeared on the scene and I turned the battle decisively in favour of Montgomery and the British 8th Army. My father being absent, serving King and country, I was a one-parent family until victory in Europe though, whether that is the reason that I am damaged in the way in which, no doubt, I am, is yet to be debated by the army of psychiatrists and psychologists who, I am sure, would love to interview me.

Lynn James analyses the consultation and dispensation provisions in s20 and s20ZA in the context of some recent cases, and assesses what this means for landlords and managing agents

The number of residential service charge dispute cases being issued in the Property Chamber of the First-tier Tribunal and the court are increasing year on year. Among these cases are a significant number which relate to consultation under s20 of the Landlord and Tenant Act 1985 and dispensation of the consultation requirements pursuant to s20ZA of the 1985 Act.

Geoffrey Shindler considers how the court dealt with will and trust disputes in 1914

We are going to hear a lot about 1914 in the next few months and indeed for the next four years. I touched on the reason at the end of my piece in TELTJ153, January/February, but let us go back now and look at what happened 100 years ago and see how it resonates today.

Geoffrey Shindler resolves to make the private client world a better place to practise

I understand that it is traditional at this time of the year to make what are known as resolutions. Not the type that trustees make or directors declare but rather those that form the hopes and aspirations for the coming year.

Geoffrey Shindler questions the rationale of the Gift Aid scheme

The Good Book tells us, ‘Now abideth faith hope and charity, these three; but the greatest of these is charity’ (Corinthians, chapter 13, verse 1). No mention there of Gift Aid. Every third article that you read in any newspaper, tabloid or otherwise, seems to have as a heading ‘scam’ or ‘tax’ or a combination. Saturday 2 November was no different. A husband and wife had been involved in a tax scam. She worked as a fraud investigator for the Department for Work and Pensions and was found guilty of laundering the proceeds of 13 bogus Gift Aid claims made by her husband. He might also have been on the government payroll, directly or indirectly, as chief executive of a mountaineering trust. This has given me grounds for thought about the connection between tax and charity. Every request for money that I receive from a charity, and they are coming thick and fast at the present time of year, advises me that, if I am generous towards the charity it will receive an additional top-up courtesy of Gift Aid, and, if I am fortunate enough to be a higher rate tax payer (sic), I can claim tax relief on the gift that I have made.

Kelly-Louise Kirby considers the ramifications of a recent ruling

While many home owners across the country prefer to see warm and dry weather, those affected by tree root subsidence issues may not be of the same opinion. This is because when the UK experiences a year of weather with clearly defined seasons, such as a warm, dry summer, followed by a cold, wet winter, the ground receives a healthy amount of water. However, when the weather is mostly dry all year round, trees are forced to grow their roots further to explore for moisture in the soil. Depending on the tree and the surrounding area, this exploring may result in tree root subsidence issues.

Geoffrey Shindler awaits possibly the first judicial review over a disputed royal resting place

I would venture to suggest that most of us can put a large part of our fortune, large or small, on the fact that the concept of the judicial review was unknown in the year 1485. But let us backtrack a little before considering that point further.

Geoffrey Shindler discusses the current focus on business ethics and cultural attitudes and how these affect the private client relationship

This year may – or then again may not – be remembered as the year of the Retail Distribution Review. Not something that affects our business directly, but I have struggled, ever since I have heard of the concept, to understand what it has to do with either retail, business or review. 2013 might also be remembered for the year in which the Financial Services Authority was split into two, another activity by those in authority that ceases to impress me as resulting in a better way of running the country. One article I read recently suggests that there has been a major change in the attitude of the two new replacement authorities, the Financial Conduct Authority and Prudential Regulatory Authority, and that this will impact in a major way on those being regulated. Apparently the changes are to concentrate on behavioural issues such as business ethics and cultural attitudes, particularly in the behaviour of senior management, and also to focus on the manner in which business is conducted. So they will no longer be looking only at the rule book but will take a view on broader issues of morals and outcomes.

Beverley Jones discusses the legal and financial issues surrounding surrogacy and clarifies the rights of all parties involved

Following the Department of Health’s recent announcement on ‘three-parent’ babies (see www.gov.uk/government/news/innovative-genetic-treatment-to-prevent-mitochondrial-disease), surrogacy has once again come to the fore and questions have been raised about the rights of the mother versus those of the intended parents, and what happens when events do not go to plan. The financial compensation involved is also subject to debate, with many unclear on what the law states. For those contemplating surrogacy, what steps can be taken from the outset to ensure the process goes as smoothly as possible for all? What kind of agreements should be put in place to protect the interests of the intended parents and the child? What does the law state about financial reimbursements?

Geoffrey Shindler contemplates how trust and estate practice has changed over the last 15 years

If you were asked what have been the most important changes to occur in trust and estate practice over the last 15 years what would be your reply? Certainly the globalisation of the world, so that clients living in a high-tax onshore country may establish a trust in an offshore country, with a company owned by that trust in yet another offshore company, which in turn owns a company in a high-tax country where the manufacturing or other substantive activity takes place. None of this is new, but what is new is the speed with which the entities can communicate with each other and with the clients, whether the clients are the entities or the original settlor/founder. I often wonder why we all spend so much time in airport lounges when the power of television and inter-office connectedness is so great. You can even see the whites of people’s eyes, the usual reason given for needing to meet face to face.

Geoffrey Shindler advocates positive action in the light of the Lord Chancellor’s rejection of the Legal Services Board’s recommendations on will writing

To universal cries of disappointment, but not entirely unsurprisingly, the recommendations made to the Lord Chancellor by the Legal Services Board relating to the regulation of will writing have been rejected.

Michael Green outlines how landlords and occupiers should prepare properties for the ban on R22

R22 is a common type of refrigerant still used in many air conditioning systems today. However, it is an ozone-unfriendly hydrochloroflurocarbon (HCFC) gas, and for this reason its days are numbered. Regulations will soon ban the use of R22, having important ramifications for both investor landlords and corporate occupiers.

Geoffrey Shindler questions the rationale of regulating will writing but not estate administration

Predictably, the spring 2013 Budget was, so far as trust and estate practitioners are concerned, something of a non-event. Indeed, since the Budget of 2006, from which some of us are still trying to recover, most of the budgets have been either so well trailed that the event itself said nothing that had not been revealed sometime earlier or contained nothing at all of relevance to us. What happened to the great British occasion that was known as the Budget? Perhaps changing the date from Tuesday to Wednesday and having the Budget interrupting our lunchtime has had an effect on the content. Whatever it is, the Budget is not what it was.

Jo Hannah looks at the reasons behind the decision to allow free schools in almost any building without the need for planning permission

The government has recently proposed that free schools should be allowed to open in almost any building for up to one year, without the need for planning permission. Unsurprisingly, this has been met with a mixed reaction.

Geoffrey Shindler argues for the abolition of the distinction between charity and philanthropy

Like the poor, with whom it is intimately connected, charity is always with us. Never more so than just now. Last year we had a government statement that there would be a special tax relief for inheritance tax if you gave a specific percentage of your taxable estate to charity. This has been enacted in Finance Act 2012. This year we had the statement that too many people were abusing income tax relief for charitable giving so income tax relief for charitable giving was to be restricted.

Alicia Oddy looks at the Court of Appeal’s recent judgment on the lawfulness of schemes that put jobseekers on unpaid work placements

Aimed at helping jobseekers gain valuable skills and return to the workplace, Back to Work schemes have been in place for a number of years and are the government’s main method for assisting jobseekers. Over the years, the schemes have been subject to criticism, with opinions differing on how beneficial they really are. The most common complaint from individuals on the schemes is that they effectively constitute forced labour, as jobseekers are placed into a working environment to carry out placements for no wage, which many of them consider to be a breach of their human rights. In addition, if a jobseeker who has agreed to a placement then refuses to complete it, the Department for Work and Pensions (DWP) has the power to issue sanctions and refuse to pay out benefits.

The idea of shifting tax upon death from the estate to the recipient is a thought-provoking one. Geoffrey Shindler weighs it up

None of us needs reminding that we are nearly two years away from the next general election and we need to be reminded even less that we will be plagued with politicians wanting our vote, electoral pundits telling us what is going to happen and why, and all the important matters in the newspapers and on television relegated to somewhere below the latest opinion poll. There is an argument for booking your holiday now and fleeing the country from March to June 2015.

Tax collection is not a moral crusade but the enforcement of black letter law, argues Geoffrey Shindler

The next time you are driving in excess of the speed limit, and admit it we all do from time to time, the speed limit being so unreasonably low, beware the flashing sirens and ear-splitting noise of the car behind you. But, equally, be aware that it may not be, as it always has been ever since the dawn of time, the police, the fire service or an ambulance. No, there is now someone else who wishes to join that holy trinity of those entitled to break the speed limit so that they can bring criminals to book more quickly. Believe it or not, the Department of Transport has been approached by Her Majesty’s Revenue & Customs with an application that they, too, can break the speed limit that applies to the rest of us in the pursuit of tax evaders. (How were those skills acquired? Paid for by the new employer? If so, is the cost taxable as a benefit in kind? But I digress).

Being at the end of the business line is no bad thing, concludes Geoffrey Shindler

Those of you who read this journal with an eagle eye from cover to cover may have noticed that ‘Musings from Manchester’ has been absent over the last few months. This is nothing to do with the failure of Manchester United to win the Premier League, by 60 seconds or so!, or the relegation of Lancashire County Cricket Club from the first division of the County Championship, but rather due to the fact that procedures carried out by the medical profession reduced my brain to a level where I could not inflict any more quarter-baked thoughts on the reading public. However, hoping that I am now on the road to recovery, I will take all the get well messages as read. Thank you!

David Pickering finds Sidney Ross’s updated book a valued companion

What every busy practitioner needs in this ever-faster moving legal world, where clients demand an instant answer, is a ‘trusted adviser’ near to hand.

Geoffrey Shindler looks at charitable donations for tax purposes

Like the poor, with whom it is intimately connected, charity is always with us. Never more so than just now. Last year we had a government statement that there would be a special tax relief for inheritance tax if you gave a specific percentage of your taxable estate to charity. This has been enacted in Finance Act 2012. This year we had the statement that too many people were abusing income tax relief for charitable giving, so income tax relief for charitable giving was to be restricted.

Gareth Curtis looks at the approach taken by the court in the big-money case of F v F on a range of complex assets

The judgment in F v F [2012] makes an interesting read, not only because of the criticism of the approach taken by the wife’s representatives but also, and more importantly, because of the wide range of issues involved for determination.

Geoffrey Shindler advocates a common sense approach to risk

If there is one small English word that has come to dominate our lives in a manner inconceivable only a few years ago it is the word ‘risk’. Everything is now looked at through the prism of risk. We cannot open a file without considering all the risks that are entailed in carrying out what used to be a simple task and we certainly cannot sign off on any piece of work without considering all of the risks that we have assumed.


Geoffrey Shindler finds the trials of an over-complex tax system a worldwide phenomenon

In March of this year I attended the STEP conference in New York, and a most enlightening conference it was too. I had not been to the Big Apple for some years so it was nice to see capitalism in the raw still thriving. In particular I noticed that the hallowed tradition of tipping everyone had not lost its edge. Everyone in the suitcase food chain from airport porter through taxi driver to bellboy and hotel suitcase delivery person had their physical and metaphorical hand out for a few dollars here or there. I suppose it is my grumpy and North Country meanness that makes me wonder why that particular tradition holds so strong in the US. Do they not pay their staff enough? Is it some part of the American dream? I did not notice that part of the dream in anything that Arthur Miller wrote.

Geoffrey Shindler argues that a legal education begins with literature

What is it that is irreplaceable when lost and what is it (it is the same answer), which is lifelong, so you can join at any time but you can never make up what you have missed originally? It is not quite priceless, but is far above rubies, as the Bible described a virtuous woman, but, however much you pay for it, there is still more that you should want and you should need.

Siobhan Almond looks at recent developments in e-Disclosure

The observation by Lord Justice Jackson that: ‘e-Disclosure is inevitable’ referred to the fact that e-disclosure, and its impact on the litigation process, could no longer be ignored by businesses and practitioners alike.

Geoffrey Shindler looks ahead to divine what regulators might have in store for wills and estate administration

Happy New Year and here we are again. Is it a case of ‘plus ça change’? Well as ever to all good questions the answer is both ‘yes’ and ‘no’, no because the world has changed and its because Lancashire County Cricket Club managed to win the Cricket County Championship for the first time since 1934, no doubt entirely due to the fact that I was on my knees praying for most of the summer and not writing articles for this journal.

Hilary Ross discusses the fining of Marks and Spencers

At the end of September 2011 a penalty of £1.6m was imposed on Marks & Spencers (M&S) for its breach of ss2 and 3 of the Health and Safety at Work Act 1974; one of the largest penalties ever imposed upon a UK retailer. The case centres on the management of contractors and highlights the confusion that often exists in relation to the health and safety responsibilities of those involved in such projects. These duties and responsibilities are particularly relevant when considering outsourcing projects.

Employers need to be cautious when discussing ex-employees, even outside formal references, warns Naomi Greenwood

While the world debates the wisdom of the superinjunction, it appears that the judicial trend of dictating what people can say has reached the employment law arena. In McKie v Swindon College [2011] HHJ Denyer QC extended the application of a duty of care on ex-employers beyond just the giving of references. Previously, case law had been limited to establishing that an employer owed a duty of care in providing a reference about an employee or ex-employee where it was foreseeable that any information provided would be relied on by a prospective employer and therefore could cause loss to that individual. However, McKie did not concern comments made in a reference but rather an e-mail sent six years after Mr McKie left Swindon College. The decision therefore sends a cautionary message to employers who engage in any communications, not limited to references, which may have a financial impact on employees or former employees.

Geoffrey Shindler explores our conflicting attitudes towards privacy

Privacy. What do we have to do with any laws relating to privacy? Dear Reader, all will be revealed, as my Victorian predecessors might have written.

Geoffrey Shindler ponders the modern means by which we acquire knowledge

How much more can we take? Are we getting to the point of information overload? Have we already reached it?

Paul Davies finds Carl Islam’s Tax-Efficient Wills Simplified an excellent summary for practitioners

Tax-Efficient Wills Simplified is intended to be a practical guide to an area of law that many people may find confusing or worrying: how to write a good and effective will that will ensure the maximum benefits to the testator’s heirs. It claims to be written in plain English in order to demystify the topic for lay readers, while also being a valuable reference tool for professionals in the field. But does it succeed?

Geoffrey Shindler challenges readers to forecast the future for trusts and estates work

Christmas is coming, but then so are a lot of other things that may not be quite as desirable. Wherever I turn nowadays there is a new world round the corner, and that new world is apparently not as attractive as the world that I am just leaving. There is a paradox here: I am always told that the past was a golden era (maybe only because it is usually seen through rose tinted spectacles), but also that the future will be an upward-only trajectory with even more happiness than the past.