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Trusts and Estates Law and Tax Journal: July/August 2011

Paul Whitehead muses on the political influences affecting tax policy in the UK

There is a point of view that one of the main problems with tax rules in the UK is that too many are politically motivated and that there should be a complete separation in setting tax policy, or at least implementing it, from politics and politicians. Whether, even in an ideal world, this is desirable is debatable, but in reality, politics plays a big part in both the principles of taxation and tax policy and the practical implementation of tax rules for all the major political parties.

Marilyn McKeever, Jeffrey Gould and Suzanne Willis analyse the interaction between UK and US tax, and how to plan best for clients

The British and the Americans are two nations divided, not only by a common language, but also by incompatible tax systems. This article considers the recent changes to the US gift and estate tax regime and examines the opportunities these give to carry out estate planning.

Alon Kaplan reviews International Trust Laws by Paolo Panico

International Trust Laws is a brave attempt to put a concise description of the subject matter into one volume of 609 pages. The contents are dealt with under English law and the laws of offshore jurisdictions such as Jersey, Guernsey, the Cayman Islands, the Bahamas, the Isle of Man, New Zealand, Dubai, Mauritius and the Cook Islands. The book also deals with aspects of recognition and impact of trust law issues in the context of civil law.

Ruth Moore examines the Neary case, which concerned applications from the media for the hearing to be in the public domain

In recent years the Court of Protection has been criticised for the secrecy of the hearings that can be held in private to protect vulnerable people. Many cases over the years have been reported with just an initial rather than a name, which has been a useful way for practitioners to see the case law build up, but protected the vulnerable individual at the heart of it.

Antoaneta Proctor outlines the facts and ramifications of Pitt & anor v Holt & anor

Can a receiver of a patient whose offices are in the Court of Protection avoid the adverse tax consequences of transactions entered into on apparently competent legal advice, which later turns out to be incorrect, by invoking either the rule in Hastings-Bass or the court’s equitable jurisdiction to relieve against mistakes? This was the specific issue that came to be considered by the Court of Appeal in Pitt & anor v Holt & anor [2011], decided jointly with Futter v Futter [2011]. See ‘ Hastings-Bass overturned?’ by Marilyn McKeever, TELTJ 126, May 2011, p4, for a discussion of Futter.

Mark Pawlowski asks whether a spouse or unmarried partner can acquire a beneficial share in property by relying on the owner’s informal declaration of trust

As far as I am aware there have been only two reported English cases where a claimant has argued for a beneficial share in property based on an oral declaration of trust: Rowe v Prance [2000] and Paul v Constance [1977]. This is, perhaps, not surprising in view of the fact that such a claim is more likely to prove successful in the context of a declaration of trust of personalty because of the evidentiary requirements imposed by s53(1)(b) of the Law of Property Act 1925 in relation to declarations of trust of land.

Nadia Cowdrey sets out the lessons to be learned from Beard v Shadler, in which the intention behind the whole will was analysed to avoid a partial intestacy

Beard & anor v Shadler & ors [2011] highlights the courts’ approach in considering the testatrix’s intention in the will, read as a whole, when construing a clause that might otherwise have resulted in a partial intestacy of intermediate income.

In the light of the Law Society’s recent practice note, Kirstie McGuigan considers what you should tell your client before being appointed as an executor

On 17 March 2011 the Law Society issued a practice note on the appointment of a professional executor. This note was clearly inspired by the Solicitors Regulation Authority’s (SRA) published responses to ‘Questions of Ethics’ in May 2010. The key theme running through both the recent practice note and the SRA’s responses is the duty of solicitors to act in the best interests of the client and to ensure that the client is fully informed of all the facts before making any decision.