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Last updateTue, 24 Feb 2015 5pm

Trusts and Estates Law and Tax Journal: May 2015
DWF

As Parliament hastens to wrap up business before the election, Geoffrey Shindler advocates a careful, considered pace

We must all be grateful that we live in a proper democracy. Not the kind of democracy where 99.9% of the population vote for the sole candidate and the other 0.1% are put up against a wall and shot for not carrying out their democratic obligations. Rather we live in a democracy like the UK where the Finance Bill, actually the second Finance Bill of the last parliamentary session, was published on 24 March with the intention of all stages being passed by both houses by 25 March. That is the kind of democracy that makes us all proud. No doubt the draft legislation was given full attention by our elected MPs and those who sit in the other house. To be fair, why should we? Some of the clauses had already been published in draft a few months ago so there had been an opportunity for those who like a dummy run of these things to have their say. Whether their say had any impact on those who passed the legislation is of course an entirely other matter. Fortunately there did not seem to be much, if anything, to disturb the quiet life of the trust and estate practitioner. Nevertheless the principle is one that is not to be encouraged.

Justin Holmes examines Re OB, The Public Guardian v AW, which sheds light on when LPA attorneys can and cannot use their principal’s funds to improve their own properties

In this Court of Protection case, OB was an elderly lady, and AW was the daughter of OB. AW and her sister DH had been appointed as OB’s attorneys under a lasting power of attorney dated 15 September 2008, although AW had taken the lead in the management of OB’s money. The case is another demonstration of the need for attorneys to be alive to possible conflicts of interest and to take action to avoid them, but it also raises the question of the basis upon which, when deciding whether to revoke a lasting power of attorney, the Court of Protection can find that the attorney has exercised undue influence.

Laytons

Simrun Seehra analyses the impact of The Human Dignity Trust v The Charity Commission for England and Wales [2013]

The Charity Commission’s decision to refuse to register the Human Dignity Trust as a charity on the basis that its purposes were not exclusively charitable and the charity’s objects were ‘unclear or ambiguous’ resulted in much criticism of the Commission, including claims that ‘the Charity Commission doesn’t know what charity is’ (Geoffrey Robertson QC in The Guardian, 5 June 2014) and ‘the regulator’s decision making is deeply flawed’ (Philip Kirkpatrick in Third Sector, 24 July 2014).

Jo Summers reviews the new edition of Parker’s Will Precedents

The introduction to Parker’s Will Precedents opens with the sentence:

Robert Gardner looks at how Jersey trustees should avoid a breach of duty when faced with the risk of tax liabilities, with reference to the Onorati Settlement

Jersey trustees have received little judicial guidance over the years as to whether they must take tax advice before entering into transactions which might have adverse tax consequences in other jurisdictions. Do they need to take their own advice? Is it a breach of duty not to do so? Can the trustee get away with relying on tax advice provided to someone else, such as a beneficiary who is about to receive a distribution? Who pays for such advice?

Withers LLP

Kennedy v Kennedy [2015] expands the horizons of the doctrine of mistake. Steven Kempster and Sarah Aughwane explain

Two years ago the Supreme Court heard the joined appeals in Pitt v Holt and Futter v Futter [2013]. The resulting judgment marks a turning point in the interpretation and application of the rule in Hastings-Bass and the equitable doctrine of mistake in England and Wales.

Divorce case Arif v Anwar and Rehan [2015] raises interesting points on beneficial ownership and also costs, as Penelope Reed QC and Nicholas Fairbank report

In Sofia Arif v Arif Anwar, Raziz Rehan [2015] Norris J, a judge of the Chancery Division, was drafted in to hear a divorce case. It made a great deal of sense as the application by Sofia Arif (the wife) for provision on her divorce ultimately boiled down to whether there would be any surplus funds after Arif Anwar’s (the husband’s) bankruptcy. That in turn depended on what assets he owned and in that regard his eldest son Raziz Rehan (the son) claimed a beneficial interest in a substantial property in Burkes Road, Beaconsfield (Burkes Road) which had been the matrimonial home.

Sarah Haren explores the lessons from Graham-York v York [2015] on the quantification of beneficial interests in the family home

The Court of Appeal’s decision in Graham-York v York [2015] treads the familiar ground of the quantification of beneficial interests in the family or quasi-matrimonial home, but sheds light on two particular aspects, namely; what factors are relevant when examining the parties’ ‘whole course of dealing between them in relation to a property’ (Oxley v Hiscock [2004])and how the burden of a mortgage should be allocated between the shares of two beneficial owners.