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Last updateTue, 24 Feb 2015 5pm

Trusts and Estates Law and Tax Journal: January/February 2017

Geoffrey Shindler argues that there is still room for personal service in a commoditised world

The New Year is as good a time as any other to think about change. Janus, the Roman god, (January is named after him, according to some) looks two ways, both backwards and forwards. Let us leave 2016 behind and focus on what lies ahead.

A recent case shows that constructive trusts can be used to justify an arrangement which has neglected the formalities. Jody Atkinson explains

Ely v Robson [2016] is another of the many cases involving unmarried couples fighting over the ownership of their home. Almost a decade ago the Law Commission recommended the introduction of a statutory jurisdiction which would give the courts power to alter interests in property when unmarried couples separate, which would have been similar, but more restricted, than those that the courts have on divorce. However, the government has refused to implement those recommendations. The result is that unmarried couples are largely treated like any other two people having a dispute over property, and are forced to rely on the law of trusts, as it has been developed by the courts over the years (and some would say that the desire to do justice to unmarried couples has had the result that the law of trusts has been bent out of shape). Rather than taking all the circumstances into account and reaching a fair outcome (which is the approach and aim of the matrimonial legislation) disputes between unmarried partners can often turn on conversations had many years ago, as this case illustrates.

Michael Colledge and Chris Rowse advise charity trustees on best practice when faced with litigation

Every organisation will face legal issues at some point, whether that is the sale or purchase of property, or a dispute with another party. Charities are no different, but in the case of disputes charity trustees will have some different considerations to take into account when considering whether to enter into litigation, including the duty to preserve charity assets.

Brendan Cotter considers how likely a claim against a testamentary predator is to succeed

As Hilaire Belloc wrote in Dedicatory Ode 1910: ‘The question’s very much too wide, and much too deep and hollow, and learned men on either side use arguments I cannot follow.’

Withers LLP

Phineas Hirsch and Robin Paul contemplate whether Brexit complicates or clarifies cross-border private client law and the EU Succession Regulation

The cloud of uncertainty which descended on us all following the 2016 UK referendum on EU membership remains dense and confusing. We confidently expect that Brexit will have a much greater impact on some areas of law than others but the expectation is that in the arena of private client law and succession the effect of leaving the EU will be much less eventful. UK succession law and administrative procedures have never been historically congruent with the EU anyway, and the UK had opted out of the European Succession Regulation (ESR) from the start.

Brabners LLP

Hayley Watson and Duncan Bailey examine HMRC’s proposal to penalise ‘enablers’ of tax avoidance schemes

The government’s most recent attempt to clampdown on tax avoidance comes in the shape of the consultation paper ‘Strengthening tax avoidance sanctions and deterrents: discussion document’, published by the HMRC on 17 August 2016. This comes as no surprise, given the reoccurring theme to tackle tax evasion/avoidance in recent Budgets, with the last being no different. The government is now looking at ways to target those who ‘enable’ tax avoidance plans/schemes which are later defeated in court.

Sadiya Choudhury reviews a case considering the IHT consequences of the transfer of a reversionary interest to an offshore settlement

In Michael Lawton Salinger and Janice Lawton Kirby v Revenue and Customs Commissioners [2016], the First-tier Tax Tribunal (Judge Anne Redston and Mrs Elizabeth Bridge) (the FTT) considered the inheritance tax consequences of the transfer of a reversionary interest to an offshore settlement. The arrangement at issue has since been the subject of anti-avoidance legislation in the form of s74A Inheritance Tax Act 1984 (IHTA), introduced in 2012.