Mon06262017

Last updateTue, 24 Feb 2015 5pm

Howard Smith summarises the position on the bestowing of gifts and other benefits when a person lacks capacity

In cases where a person (P) lacks capacity to manage their financial affairs, questions often arise of whether P’s assets should be used to make a gift or confer some other benefit on a third party.

Duncan Bailey reviews the latest version of Ray & McLaughlin’s Practical Inheritance Tax Planning

What an initially daunting book: 45mm thick, 900 odd pages and no pictures or thumb spaces between the words.

Liz Braude gives the lowdown on the jurisdiction of the consistory courts, with reference to recent cases

Few practitioners have experience of the consistory court, an ecclesiastical court, which can trace its origins to the 11th century and the arrival of William I in England. While many functions of the ecclesiastical courts, such as probate and divorce, have moved to the civil courts, the consistory court retains jurisdiction in matters relating to church buildings and to consecrated land. Each diocese has its own consistory court which is presided over by a chancellor – a lawyer of at least seven years standing. Applications to the court are in the form of a petition.

Geoffrey Shindler delves into the psychology of will-making and its link with the seasons

Summer time brings mixed emotions for trusts and will practitioners. Looking out over the gloriously sunny and warm Manchester town centre, the images that I have are hardly those of Bleak House. So it made me wonder whether there is something inherent in the work that we do that makes it more suitable to winter time. There may not be any Bleak House-type smog anymore, but somehow wills and probate produce a feeling of black tidings, black clothes and black emotions. There is hardly anything elevating about drafting a will or a settlement, even if we no longer have to deal with the rules in Howe v Dartmouth [1802] and Allhusen v Whittell [1867]. It just seems more natural to be talking about wills and death in the winter time than it does in the summer.

Rosamond McDowell looks at Labrouche v Frey [2016], which serves as a reminder of the different types of breaches of trust and their remedies

Could Thomas Cranmer have guessed, in compiling the Book of Common Prayer in the 16th century, that his words from the General Confession would echo in a 21st century piece of Chancery litigation?

Carolyn O’Sullivan highlights what the private practitioner needs to know about ATEDs

Historically, non-UK domiciled individuals (non doms) have purchased UK property through offshore companies for a variety of tax and non-tax related reasons. In advance of the introduction of the Annual Tax on Enveloped Dwellings (ATED) from 1 April 2013, some corporate structures were unwound to avoid this new charge. In other cases, a positive choice was made to retain the structure, despite the tax costs, because the benefits (generally removing inheritance tax (IHT) exposure and perhaps for reasons of privacy) outweighed the disadvantages.

Gareth Keillor and Rosanna Pinker consider the lack of clarification from the Supreme Court on the illegality defence

The application of the illegality defence, otherwise known as the ex turpi causa non oritur action principle, has long been a means of preventing claimants from relying on their illegal actions to initiate a claim against another party. In essence, the defence relies upon an argument that a claim should not be allowed to succeed where the claimant has been involved in illegal conduct that is connected to the claim. In the context of trusts law, shareholder disputes and fraud, the defence of illegality has been repeatedly raised by defendants and dealt with by the court, though not always consistently.

Don McCue examines the lessons from Curran v Collins [2015]

Claims on constructive trust principles to a share of the beneficial interest in a property in another’s sole name, or a larger than half share in a property in joint names, are usually (but not always) brought by ex-cohabitees.