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Trusts and Estates Law and Tax Journal: June 2017

Geoffrey Shindler finds the current public funding predicament all too familiar

Two articles caught my eye in a recent edition of a Saturday pink newspaper – not being the Manchester Football Pink (of blessed memory). Both had similar underlying stories to tell. Namely that people never learn, and that life repeats itself – as tragedy (first time) and farce (second time) as Karl Marx said. I think that we are reaching the farce level.

Katherine Pymont reflects on the lessons from Roberts v Fresco [2017]

The High Court has held in Roberts v Fresco [2017] that a husband or wife’s right to claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) does not survive for the benefit of his or her estate.

Thrings LLP

Michael Young considers the eighth edition of Professional Conduct in Relation to Taxation

According to Wikipedia, one of the distinguishing features of a professional is the requirement that they adhere to ‘strict codes of conduct, enshrining rigorous ethical and moral obligations‘ and that:

Gillian Coumbe QC discusses a recent case where the New Zealand Supreme Court considered the principles governing disclosure of trust information to beneficiaries

The New Zealand Supreme Court’s judgment in Erceg v Erceg [2017] is notable for a number of reasons. First, the court upheld a blanket refusal by the trustees to give the appellant, a discretionary beneficiary, access to any trust documents. Although the appellant was a primary beneficiary of one of the two trusts, the court did not even permit him to see the trust deed or trust accounts. Secondly, the court adopted a flexible, continuum-based approach to disclosure, the strongest case for access involving a request for ‘core’ trust documents by a ‘close beneficiary’. In such a case there will now be an expectation of disclosure, unless there are exceptional circumstances. Thirdly, the court adopted an interestingly expansive appellate test, taking the view that an appeal court can make its own fresh assessment whether to order disclosure. Finally, the court considered the ability of a bankrupt discretionary beneficiary to seek trust information, an issue on which there is little prior case law.

Ogier Legal

Nigel Sanders examines changes of trustees and protectors in contentious circumstances

Most modern trust instruments will contain provisions which grant certain individuals the power to effect a change of trustee or protector. It is well established in Jersey law that such a power is a fiduciary one: see Re Bird Charitable Trust [2008]. The legal principles as a matter of Jersey law that will apply to the exercise of these fiduciary powers of appointment of new trustees and protectors have been the subject of a number of Royal Court decisions. However, cases of particular note in recent times, in terms of the issues to be addressed when appointments are challenged, and the costs of those proceedings, were the Royal Court’s decisions in Representation of Jasmine Trustees Ltd [2015] and In the Matter of the Piedmont Trust and the Riviera Trust [2016]. The first decision provided useful guidance with regard to the test and approach that the court will apply when judging whether the exercise of a power of appointment was lawful. The second decision provided an analysis of the principles and considerations that are applied to the costs of any proceedings challenging such appointments.

Simon Edwards sums up key recent guidance of which practitioners should be aware

March heralded not only spring but also two new sets of guidance, one from the Law Society relating to the disclosure of wills and the other from the Office of the Public Guardian relating to the duties of professional attorneys.

Carey Olsen

John Greenfield and Elaine Gray outline recent Channel Island decisions on the personal liability of trustees

This article reviews a series of judgments delivered in 2014 and 2015 by the Guernsey Court of Appeal in the long-running Tchenguiz litigation. In particular it is worth looking at a judgment delivered on the 29 October 2014 Investec Trust (Guernsey) Ltd & ors v Glenalla Properties Ltd, which provided the first ever judicial interpretation of the statutory regime introduced by the laws of Guernsey and Jersey as to the personal liability of trustees for any obligations arising out of a Channel Island trust.

Mary Ashley looks at modernising trusts through variation

Once a trust is created, the trustees are effectively bound by the terms of it. At times, this can mean that trustees must obey outdated directions of a trust instrument which can lead to uncertainty, inflexibility and the potential for the trust to be brought to a premature end.