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Trusts and Estates Law and Tax Journal: December 2013

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.

The attempted sale of Shakespeare’s folios highlights the difficulties of securing a benefactor’s wishes down the years. Edward Rowntree considers the options

A recent furore has served to highlight the difficulties faced by benefactors wishing to secure their wishes on a long-term basis. A controversial proposal was put forward by the University of London to sell four Shakespeare folios with a view to creating an endowment fund that would attract more readers. The idea was to develop the Library’s Special Collections, including the purchase of modern manuscripts, and strengthen the case being put by Senate House for the restoration of Higher Education Funding Council for England (HEFCE) funding for the library as a national research library.

Ailsa Moorhouse provides a succinct summary for practitioners

The first reading in the House of Lords of the Inheritance and Trustees’ Powers Bill on 30 July 2013 marked the culmination of an in-depth, lengthy process of discussion, consultation, recommendation and drafting and had the stated purpose to ‘make further provision about the distribution of estates of deceased persons and to amend the law relating to the powers of trustees’. More specifically, the ‘estates’ part of the legislation addresses firstly the law relating to intestacy, where a person dies without leaving a valid will which disposes of all of their property, and, secondly, claims for reasonable financial provision from an estate by relatives and dependants under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). This article considers the nature of the proposed changes, which are considered by some to be long overdue, and also some of their possible implications.

Farrer & Co

Sam Macdonald and Elizabeth Jones examine the updated Charity Commission guidance on public benefit

New public benefit guidance was published by the Charity Commission in September. This guidance replaces the original guidance that was judicially reviewed by the Independent Schools Council (ISC) in 2011, the outcome of which saw the Upper Tribunal (Tax and Chancery Chamber) requiring the Charity Commission to withdraw parts of the original guidance that it determined to be incorrect.

Williams v Wilmot indicates key factors the court will take into account when considering lack of capacity. Sharon Kenchington explains

The question of whether someone lacks the capacity to make a will is not confined to the elderly, but our ageing population and increasing rates of dementia mean that more and more wills of elderly testators are being challenged on this basis.

Fox v Jewell gives an indication of the appropriate procedure practitioners should follow when dealing with a multi-stranded claim. Malcolm Warner reports

Farmers’ sons seem to form the bedrock of a practice advising on proprietary estoppel and, with the cost of farmland rising remorselessly, this shows no sign of abatement. The scenario plays out akin to a Victorian novel, but this reflects the cases crossing my desk time and again. The parents hope their sons will come into farming after them, and during their childhood the children help out on the farm. As careers loom large in the mid-teenage years, there are discussions over the kitchen table about the future of farming and especially this family’s farming. Some children are interested and others are not. The ones who are interested join their parents and, as time moves on and they enter their 20s, the talk turns to the longer term, especially as some may be ‘courting’ and, farmers being farmers, they may have to tell another family what their prospects are.

Jennifer Seaman sets out the lessons to be learned from Re Hampel Discretionary Trust

The remedy of rectification is available as part of the court’s wider power to grant equitable relief against a mistake in a voluntary disposition.

Withers LLP

Filippo Noseda examines new reporting obligations for trusts in Italy

Since the English aristocracy established the custom of the Grand Tour in the 17th and 18th century, the Italian legal system has had to grapple with trusts. For example, a decision of 1909 from the highest court in Naples had to deal with the effects of a testamentary trust established by the estranged wife of Horatio Walpole, 4th Earl of Oxford, who, after separating from her husband, moved to Florence with her two daughters.