Sun11192017

Last updateTue, 24 Feb 2015 5pm

Nigel Sanders examines changes of trustees and protectors in contentious circumstances

Most modern trust instruments will contain provisions which grant certain individuals the power to effect a change of trustee or protector. It is well established in Jersey law that such a power is a fiduciary one: see Re Bird Charitable Trust [2008]. The legal principles as a matter of Jersey law that will apply to the exercise of these fiduciary powers of appointment of new trustees and protectors have been the subject of a number of Royal Court decisions. However, cases of particular note in recent times, in terms of the issues to be addressed when appointments are challenged, and the costs of those proceedings, were the Royal Court’s decisions in Representation of Jasmine Trustees Ltd [2015] and In the Matter of the Piedmont Trust and the Riviera Trust [2016]. The first decision provided useful guidance with regard to the test and approach that the court will apply when judging whether the exercise of a power of appointment was lawful. The second decision provided an analysis of the principles and considerations that are applied to the costs of any proceedings challenging such appointments.

Katherine Pymont reflects on the lessons from Roberts v Fresco [2017]

The High Court has held in Roberts v Fresco [2017] that a husband or wife’s right to claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) does not survive for the benefit of his or her estate.

Gillian Coumbe QC discusses a recent case where the New Zealand Supreme Court considered the principles governing disclosure of trust information to beneficiaries

The New Zealand Supreme Court’s judgment in Erceg v Erceg [2017] is notable for a number of reasons. First, the court upheld a blanket refusal by the trustees to give the appellant, a discretionary beneficiary, access to any trust documents. Although the appellant was a primary beneficiary of one of the two trusts, the court did not even permit him to see the trust deed or trust accounts. Secondly, the court adopted a flexible, continuum-based approach to disclosure, the strongest case for access involving a request for ‘core’ trust documents by a ‘close beneficiary’. In such a case there will now be an expectation of disclosure, unless there are exceptional circumstances. Thirdly, the court adopted an interestingly expansive appellate test, taking the view that an appeal court can make its own fresh assessment whether to order disclosure. Finally, the court considered the ability of a bankrupt discretionary beneficiary to seek trust information, an issue on which there is little prior case law.

Michael Young considers the eighth edition of Professional Conduct in Relation to Taxation

According to Wikipedia, one of the distinguishing features of a professional is the requirement that they adhere to ‘strict codes of conduct, enshrining rigorous ethical and moral obligations‘ and that:

Geoffrey Shindler finds the current public funding predicament all too familiar

Two articles caught my eye in a recent edition of a Saturday pink newspaper – not being the Manchester Football Pink (of blessed memory). Both had similar underlying stories to tell. Namely that people never learn, and that life repeats itself – as tragedy (first time) and farce (second time) as Karl Marx said. I think that we are reaching the farce level.

Hannah Gearey outlines the points considered when there is a conflict between the authority of the deputy and trustees in the case of a personal injury trust

The question that arose in the case of Watt v ABC [2017] highlights the conflict that can arise between the authority of a deputy appointed by the Court of Protection, and the trustees of a personal injury trust.

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.

Emma Loveday provides some specific examples of the effects of recent reforms to taxation on non-UK domiciled trusts

In the March 2017 edition of Trusts and Estates Law & Tax Journal, I wrote an article entitled ‘Where are we now?’ providing an update on the various government consultations affecting private client practitioners. The consultations included those relating to the reforms to the taxation of non-domiciliaries (non-doms) which came into force on 6 April 2017. In this addendum to the article, I explain in further detail how these non-dom reforms will affect a standard offshore trust structure by looking at two different scenarios before and after 6 April 2017. Since writing the original article, the government has published amendments to the non-dom reforms in Finance Bill 2017, and this addendum incorporates those changes.