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Trusts and Estates Law and Tax Journal: March 2012

Geoffrey Shindler argues that a legal education begins with literature

What is it that is irreplaceable when lost and what is it (it is the same answer), which is lifelong, so you can join at any time but you can never make up what you have missed originally? It is not quite priceless, but is far above rubies, as the Bible described a virtuous woman, but, however much you pay for it, there is still more that you should want and you should need.

Farrer & Co

Sam Macdonald and Elizabeth Jones review the decision in the ISC’s judicial review of Charity Commission guidance on public benefit

On 13 October 2011, the Upper Tribunal (Tax and Chancery Chamber) released its decision in the Independent Schools Council’s (ISC) judicial review of the Charity Commission’s (the Commission) guidance on public benefit, and the related Reference by the Attorney General. The decision – The Independent Schools Council v the Charity Commission; HM Attorney General v the Charity Commission for England and Wales & anor [2012] – has been described as the most important judicial statement in charity law for 50 years. While that might be hyperbole, there is no doubt that the decision is highly significant. It provides a thorough examination of the pre-2006 case law dealing with public benefit and fee-charging. It analyses the effects of the Charity Act 2006 (the 2006 Act) upon these issues, and in particular the effects of the so-called removal of the presumption of public benefit. And it provides confirmation on various key principles that were in issue in the litigation.


Stewart Jordan and David Kilshaw outline what the UK practitioner needs to know about foundations

The purpose of the article is to offer some thoughts from a UK perspective on foundations in general. Analysing a foundation from the UK perspective is extremely challenging and the article does not purport to be exhaustive or definitive, or even a legal treatise, on the subject. It is not intended to set out a legal opinion on the characterisation and classification of entities generally or, as in this case, the Austrian privatstiftung (private foundation) in particular (given the background to the article, the main focus is on the Austrian privatstiftung, but many of the points discussed will be of wider application). Rather, it is offered as a tax adviser’s perspective focusing on the issues, challenges and opportunities offered by the Austrian privatstiftung to the UK tax practitioner.

Helen Ratcliffe analyses the UK/Swiss tax agreement and the implications for trusts

Many UK-resident individuals will have family money in Swiss bank accounts that may have been there for several generations. The upheavals in Europe at the start of the last century resulted in significant funds being placed in Swiss bank accounts. Some of these individuals will be beneficiaries of family trust and company structures, and some may be non-UK domiciled. There may be concerns about UK tax compliance. This article will look at the implications that can be gleaned so far about the agreement signed on 6 October 2011 between the UK and the Swiss Confederation on co-operation in tax matters (the agreement).

Austin v Woodward clarifies the limits of ‘clerical error’ as a ground for rectification, as Michael O’Sullivan explains

The case of Austin v Woodward & anor [2011] concerned an application for rectification of a will under s20 of the Administration of Justice Act 1982. The case is of interest because it examines the limits of the concept of the ‘clerical error’ and restates the test applied by the court when considering whether to extend the time limit for making a rectification application.

In his concluding article Sukhninder Panesar examines the impact of Sinclair Investments Holdings SA v Versailles Trade Finance Ltd & ors

In Part 1, this article explored the nature of equitable tracing with specific reference to the need to establish a proprietary connection between the claimant’s original property and the asset being traced in the hands of a defendant. It will be recalled that, despite various academic and theoretical arguments suggesting that the right to trace property into the hands of third parties required a proprietary connection between the claimant’s own property and the property being traced, the Privy Council in Attorney-General for Hong Kong v Reid [1994] did not regard the need to prove a proprietary connection as crucial. It will be recalled that in that case the Crown was able to trace freehold properties, which had been acquired by a public prosecutor working for the Crown in Hong Kong by virtue of bribes that he had received in the course of his employment. Although the decision of the Privy Council had been accepted as representing the position in English law, more recently the Court of Appeal has not followed the decision of the Privy Council and as such has limited the right to trace unauthorised gains made by fiduciaries to situations where there the gain has been made as a result of the use of the claimant’s property. The decision of the Court of Appeal is analysed in detail in this part of the article as well as the state of the existing law and the ramifications of the decision itself.

Amin v Amin is an interesting application of the test in Stack v Dowden, as Sofie Hoffman discusses

A considerable amount of attention has been given to the recent decision of the Supreme Court in Jones v Kernott [2012], in which the Supreme Court carried out a detailed review of the leading decision of the House of Lords in Stack v Dowden [2007] relating to the determination of beneficial interests in property.