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Trusts and Estates Law and Tax Journal: December 2010

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.


Richard Frimston gives an update on the progress of EU regulations affecting cross-border estates

The European Commission (the Commission) thinks that cross-border inheritance tax issues are a growing concern for EU citizens. The inheritance tax rules in EU member states concerning cross-border estates can hinder EU citizens in fully benefiting from their right to move and operate freely across borders within the internal market. These rules may also create difficulties for the transfer of small businesses following the death of owners.

Forsters LLP

Zahra Kanani considers the results of a recent consultation over disposal of land by charity trustees

Charity trustees can generally rely on the power contained in the Trusts of Land and Appointment of Trustees Act 1996 (known as the ‘statutory power’) to dispose of a charity’s land. The term ‘disposition’ is wide and includes, inter alia, a sale, transfer or conveyance of freehold land and the grant of a lease for more than seven years. Use of the statutory power is dependent on the trustees:

Catherine Paget and Scott Taylor discuss removal of executors and trustees from an estate

This case, decided in February 2010 by Mr Justice Newey, is important because it states that the testatrix’s own wishes in selecting her executors is a factor which militates against their removal by the court. It was an application by a beneficiary, John Kershaw, for the removal of all three executors of his mother’s estate, namely: Mrs Micklethwaite and Mrs Barlow (his two sisters), and Mr Humphries (an accountant).

Jo Summers and Caroline Eady outline the lessons to be learnt from AON Pension Trustees Ltd

The case of AON Pension Trustees Ltd v MCP Pension Trustees Ltd [2010] is important on two levels. From a practical perspective, it is a stark reminder to all trustees of the importance of keeping accurate and up-to-date records of their beneficiaries. Equally the case shows how vital it can be to take out insurance on the winding-up of a trust.

Charlotte Simm reviews a case that highlights the need for absolute clarity in will drafting

One does not need to be a specialist in such matters to know that a change of property use and an increase in traffic over rights of way are common causes of disagreement between neighbours. Where the purpose of a right of way is unclear, the scope for conflict is increased. In some cases, the parties to the dispute are relatives, which adds further to the acrimony.

Rachel Mainwaring-Taylor finds Aerostar a timely reminder of how directors must be aware of their duties when dealing with multiple companies

In Aerostar v Wilson [2010], the transactions in relation to which various claims were made are complex, involving a large number of companies and company representatives appearing at various times. The aspect of the case I will discuss is the breach of fiduciary duties by company directors, and secondary liability arising from dishonest assistance and knowing receipt. These claims concern the diversion of a business opportunity from Aerostar Maintenance International Limited (AMIL) to Avman Limited (Avman) by Christopher Wilson and Jeffrey Ashfield.

Robert Blower and James d’Aquino assess the usefulness of STEP and HMRC guidance for practitioners

In response to widespread concern among practitioners to the modernised trustee residence rules introduced by the Finance Act 2006, and to HMRC’s recent guidance note on the subject, the Society of Trust and Estate Practitioners (STEP), the Institute of Chartered Accountants of England and Wales (ICAEW) and the Chartered Institute of Taxation (CIOT) have jointly released their own guidance note in agreement with HMRC (the STEP guidance).