Last updateTue, 24 Feb 2015 5pm

Trusts and Estates Law and Tax Journal: July/August 2013

Geoffrey Shindler advocates positive action in the light of the Lord Chancellor’s rejection of the Legal Services Board’s recommendations on will writing

To universal cries of disappointment, but not entirely unsurprisingly, the recommendations made to the Lord Chancellor by the Legal Services Board relating to the regulation of will writing have been rejected.

Marilyn McKeever discusses the implications of the Supreme Court decision in Futter v Futter and Pitt v Holt

A seven-strong Supreme Court led by Lord Walker decided that the Court of Appeal had been right to redefine the rule in Hastings-Bass, but wrong in its analysis of the law of mistake.

Withers LLP

Dawn Goodman and Geoffrey Kertesz discuss a case that clarifies the grounds upon which protectors can be removed, and also sounds a note of caution for a common practice in the trust industry

Until the Royal Court of Jersey issued its judgment in Re A and B Trusts [2012], there was a paucity of authority setting out the scope of the duties of trust protectors and the grounds on which they could be removed from office.

Sharon Kenchington analyses a case that affirms the existence of a judicial ‘safety net’ to protect vulnerable adults who retain capacity so do not fall under the MCA 2005 or the Court of Protection

The Mental Capacity Act 2005 and its Code of Practice provide a comprehensive statutory code for dealing with individuals who lack mental capacity. The Court of Protection in its present form was established as an independent court of record in relation to persons who lack capacity and came into operation upon the coming into force of the Mental Capacity Act. However, s2(1) of the Act limits the ambit of the act to individuals who lack capacity in relation to a particular matter where, at the material time, they are unable to make a decision for themselves ‘because of an impairment of, or disturbance in the function of the mind or brain’. Since the enactment of the legislation it has become clear that the Mental Capacity Act definition fails to capture a significant sector of the population who may retain mental capacity, but still be vulnerable to exploitation or even significant harm by others because of prevailing circumstances. In many cases, individuals who are deemed to be ‘vulnerable’ in this context will be elderly and the term ‘elder abuse’ is often used by practitioners to describe a particular situation that has arisen; however, younger adults may also be at risk. The recent case of DL v A Local Authority [2012] highlights this lacuna.

Jo Summers examines new guidance for banks on controlling money for someone else

After many years’ negotiation, ‘a framework for authorising people wanting to operate a bank account for someone else’ has been published. The framework is the result of a partnership between the British Banking Association, the Building Society Association, the Law Society, Solicitors for the Elderly and the Office of the Public Guardian. Contributions were also received from Age UK and the Alzheimer’s Society.

Forsters LLP

Fiona Smith finds much to praise in the 2013 edition of a distinguished classic

Williams, Mortimer and Sunnocks’ ‘Executors, Administrators and Probate’ is a staple of most private client practitioners’ libraries and the latest 2013 edition is no exception. A comprehensive analysis of the law as it applies to wills and the administration of estates, and comprising almost 2,000 pages of text, references and statutes, it is an essential volume for anyone specialising in this area of practice.

Kerry Rogers assesses the current attitude towards legacies and discusses how legal professionals should handle charitable giving

The charity sector is experiencing a difficult time. The economic climate, and increased competition between charitable causes, means that charities are having to work harder than ever to maintain their legacy income. As lawyers, our profession clearly has a key role in advising clients about making gifts to charities in their wills, and we deal on a day-to-day basis with estates involving charity beneficiaries. The relationship between charities and legal professionals is therefore extremely important. But why is this the case, and what can be done to build a stronger relationship?

Imogen Buchan-Smith sets out the key points of the much-anticipated GAAR

The introduction of the much-debated (and, from HMRC’s perspective, long-awaited) General Anti-Avoidance Rule (GAAR) is nigh. As soon as the Finance Bill 2013 receives Royal Assent this summer, the GAAR will come into effect and will apply to all tax arrangements entered into on or after that date, and may capture arrangements which have been implemented prior to this date if ‘abusive’ steps have been taken subsequent to the Royal Assent.