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Trusts and Estates Law and Tax Journal: January/February 2013

Stuart Adams gives his view on the proposals to reform the rules in light of the recent consultation

The Non-Contentious Probate Rules 1987 (the NCPRs) came into force on 1 January 1988 and, over 25 years later, they are still with us.

DWF

Being at the end of the business line is no bad thing, concludes Geoffrey Shindler

Those of you who read this journal with an eagle eye from cover to cover may have noticed that ‘Musings from Manchester’ has been absent over the last few months. This is nothing to do with the failure of Manchester United to win the Premier League, by 60 seconds or so!, or the relegation of Lancashire County Cricket Club from the first division of the County Championship, but rather due to the fact that procedures carried out by the medical profession reduced my brain to a level where I could not inflict any more quarter-baked thoughts on the reading public. However, hoping that I am now on the road to recovery, I will take all the get well messages as read. Thank you!

Trustees v Capmark Bank reminds us that trustees can be personally liable to third parties, as Marilyn McKeever discusses

The case of Trustees v Capmark Bank [2012] is a salutary reminder that trustees’ liabilities to third parties are personal liabilities.

Sarah Clune looks at Rai, a rare case in which the High Court considered an application that the Charity Commission had refused to authorise

The case of Rai v Charity Commission for England and Wales [2012] concerned an internal dispute within the organisation, Shri Guru Ravidass Sabha (the association), which is an unincorporated registered charitable association with objects for the advancement of religion. The claimants were members of the association. The governance and management of the association was carried out by the trustees (who, under the association’s constitution, were responsible for the ‘entire affairs’ of the charity and were therefore its charity trustees) and by an executive committee (an elected body).

Joshua Winfield looks at the lessons of Re Longman

Section 75F of the Charities Act 1993 (now s311 of the Charities Act 2011) (s75F) provides that, where a charity engages in a merger that results in the transfer of its assets to another charity (subject to certain exceptions that do not apply here):

Scott has valuable lessons about the removal of trustees, as Ashley Crossley and Imogen Buchan-Smith explain

The case is both a reminder of the English court’s (in this case the High Court’s) inherent jurisdiction to remove trustees and the circumstances under which the court will exercise this power as well as the merit of using independent trustees in the context of family trusts.

Jo Summers summarises the key points of HMRC’s consultation on vulnerable beneficiary trusts

How do you define vulnerability? That is the question raised by HMRC’s recent consultation on vulnerable beneficiary trusts. It may be easy to spot vulnerability but it is harder to define it, as I found out when working on the Law Society’s Wills & Equity Committee’s response to the consultation.

Sarah Clune gives an update on Catholic Care’s appeal on same-sex adoption

On 2 November, the Upper Tribunal (Tax and Chancery) dismissed an appeal by Catholic Care (Diocese of Leeds) (the charity) in the latest stage of a long-running battle in which the charity has sought permission to change its objects clause in its memorandum of association which would allow it to discriminate lawfully against same-sex couples in placing children for adoption. The charity appealed the decision of the First Tier Tribunal (FTT), which upheld the Charity Commission’s decision to refuse to grant permission under s64 Charities Act 1993 (on two occasions). This latest decision serves to highlight the clash between the teachings of the Roman Catholic Church and the Equality Act 2010.

In the first of two articles, Julia Rangecroft sets out the best approach to deathbed planning

Mitigating capital taxes is frequently a financial planning objective, and, in the context of inheritance tax, it is best done as part of a long-term process, allowing for the use of more than one nil-rate band and the making of lifetime exempt gifts. This does not mean, however, that deathbed planning should be seen as a poor substitute for lifetime planning. The purpose of this article is to establish deathbed planning as an equally important partner in the succession process. Deathbed planning is a tax planning opportunity that stands alone, separated from lifetime planning by the certainty of death. Knowing the timescale within which death will occur, and the order in which family members will die, removes two uncertainties that make long-term planning so difficult. Removing the uncertainty of when, and in what order, death will occur fundamentally impacts on the client’s objectives and the existing succession plan. The certainty may well give rise to tax-planning opportunities.