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Trusts and Estates Law and Tax Journal: December 2012
Forsters LLP

Robert Keylock provides an update on the usefulness of discounted gift plans after Watkins v HMRC [2012]

When the tax on pre-owned assets came into force in April 2005, many advisers raised a quizzical brow at the Treasury’s benign treatment of certain life assurance products, which unexpectedly slipped through the fingers of parliamentary draftsmen wholly unscathed. In spite of that, recent case law in the context of discounted gift plans (DGPs) highlights that despite falling outside the gifts with reservation of benefit legislation and the tax on pre-owned assets, DGPs will not always provide an answer to the estate-planning prayers of taxpayers.

Freeths

Sarah Foster finds an unexpected party benefits in Philippe v Cameron [2012], a dispute between a tennis club and a church

Sporting clubs, societies and other unincorporated associations are a very important aspect of English social life. In essence, they arise when two or more people come together for a particular purpose, but decide not to use a formal structure like a company.

Re Foote highlights the importance of domicile in our multi-jurisdictional society, as Suzana Popovic-Montag and Stuart Clark relate

The 2011 decision Re Foote Estate, of the Alberta Court of Appeal, centres around the issue of domicile. Leave to appeal the decision to the Supreme Court of Canada was denied. As a result, we have, for the time being at least, the most recent proclamation on how a court will determine where one is ‘domiciled’ for estate administration purposes.

Ashley Crossley and Alexandra Demper analyse the decision in DDD Settlements [2011] and its confirmation of English case law

In recent years, a number of cases in Jersey have considered the ambit of Article 47 of the Trusts (Jersey) Law 1984. The case of DDD Settlements [2011] showed the Royal Court of Jersey willing to adopt a pragmatic approach to the application of Article 47 when considering and balancing the benefit afforded to unborn and unascertained beneficiaries against the potential for efficient tax planning by revoking the intentional and irrevocable exclusion of a settlor.

Michael O’Sullivan reviews the case of Re JC [2012], which clarifies the current position with statutory wills and adoption

The case Re JC [2012] involved an application for a statutory will that was made by D, who was the biological daughter of JC but who had been put up for adoption by her biological mother and adopted by different parents. The case vividly illustrates that the court’s present jurisdiction under the Mental Capacity Act 2005 does not allow it to make a will on an objective fair basis. Instead the court has to apply the ‘best interests’ approach. Re JC, however, shows that applying the ‘best interests’ test in the context of a statutory will application is often difficult and that the Act is not ideally suited to task.

Farrer & Co

Paul Ridout examines the consequences of the Upper Tribunal’s determination on the Attorney General’s Reference on benevolent funds and certain other poverty charities

One single evening lecture, which formed part of my law studies, addressed the question of charitable trusts, ranging from the catechism of charitable purposes in the Preamble to the Charitable Uses Act 1601 through to the Charities Act 1993, most of which had recently come into force. Within that one all too brief lecture, we learnt about the concept of public benefit and about the principle that any organisation wishing to have charitable status must have purposes that are for the benefit of a sufficient section of the public. We learnt that, in order for class of beneficiaries to have the necessary public character, it must not be defined by reference to a private nexus unless the purpose of the charity is the relief of poverty. We were given the example of the trust for the education of children of employees of British American Tobacco, which was held not to be charitable, and this was contrasted with the case of a gift for the benefit of poor employees of a single company, which has stood as good authority for the proposition that charities for the relief of poverty could have a beneficial class defined by reference to a personal nexus such as family relationship or employment.

Brabners LLP

Duncan Bailey discusses the current focus on celebrities being ‘seen’ to pay their fair share of tax

I am writing this after reading in the news that the nation’s summer sporting hero – Bradley Wiggins – has publicly withdrawn from a controversial tax avoidance scheme named Twofold First Services. The decision to go into this in the first place was, of course, based on advice from his professional advisers!

Page v West [2010] elucidates the circumstances in which trustees should seek guidance from the court, as Olivia Knowles and Lynne Gregory explain

The application before the court was brought on behalf of Christopher John Page and Nigel Morton of Charles Russell LLP as court appointed trustees of the trust of the estate of Frank West (deceased) for permission to sell a property known as West’s Yard (the Yard).