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Trusts and Estates Law and Tax Journal: May 2017

Ilott v Mitson [2017] misses the chance to clarify financial provision for adult children. Natasha Dzameh discusses the Supreme Court judgment

Complete freedom of testamentary disposition permits the unsatisfactory situation whereby a testator fails to make provision for their spouse and/or children. In order to prevent these instances occurring the Inheritance (Family Provision) Act 1938 (the 1938 Act) was effected. However, it could only be relied upon where the deceased had executed a will, and the question of reasonable financial provision in relation to children concerned a far narrower understanding of the term ‘children’; there was no definition of the word, instead the 1938 Act specified when a son or daughter would qualify. The relevant Act is now the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). The 1975 Act expanded significantly upon the 1938 Act but with this expansion came certain grey areas, particularly how to treat an adult child’s application for reasonable financial provision.

DWF

Paul Davies reviews the latest edition of a trusted classic

The latest edition of Drafting Trusts and Will Trusts – a Modern Approach (13th ed) has recently been published and, having accepted the invitation to review this well-known publication I realised I would actually have to read it – not just skim it but read it properly (or most of the chapters at any rate). Although I am familiar with earlier editions of this book I have never read it from cover to cover and I don’t suppose very many people have; after all, I am sure most people would regard the book mainly as a reference book rather than a riveting page turner. That is a pity because having found the time to read it I realise what an educational experience it has been. Furthermore, because it is more readable than most technical publications, reading it did not feel like a great chore. I am not going to try to convince you that this is a book you would want to take away on holiday, but if you did I do not think you would regret it.

Hannah Gearey outlines the points considered when there is a conflict between the authority of the deputy and trustees in the case of a personal injury trust

The question that arose in the case of Watt v ABC [2017] highlights the conflict that can arise between the authority of a deputy appointed by the Court of Protection, and the trustees of a personal injury trust.

Geoffrey Shindler considers recent criticisms and concerns affecting the judiciary

When discussing his job prospects the immortal Peter Cook said ‘I didn’t have the Latin for the judgin’’. In fact judges and their job prospects have been very much in the minds of various people recently, not least the, though soon to be ex, Lord Chief Justice and also the Secretary of State for Justice together with the Lord Chancellor. The latter two are in fact the same person, which only goes to show that WS Gilbert got it right 130 years ago when writing The Mikado because Ko-Ko was the Lord High Executioner leaving Pooh-Bah as Lord High Everything Else.

A preliminary ruling by the ECJ has found a UK exit tax to be a restriction on the freedom of establishment. Christopher Salomons explains

On 21 December 2016 Advocate General Kokott issued an Opinion regarding the compatibility of s80 TCGA 1992 with the fundamental freedoms under the Treaty on the Functioning of the European Union (TFEU) in the case of The Trustees of the P Panayi Accumulation & Maintenance Settlements v Commissioners for Her Majesty’s Revenue and Customs [2015]. The First-tier Tax Tribunal (FTT) had requested a preliminary ruling.

Jonathan Shankland and Claudia Whibley set out the detail of proposed EU public beneficial ownership register

The aim of the 4th EU Anti-Money Laundering Directive 2015/849 (4AMLD) was to further combat money laundering, tax avoidance and the financing of acts of terrorism, the latter being at the forefront of minds in light of the recent spate of attacks across Europe in recent years.

Thomas Klemme and Oliver Auld highlight a clash of trust law concerning trusts over foreign assets, which also has lessons for liquidators

The recent Supreme Court judgment in the case of Akers v Samba Financial Group [2017] (Akers v Samba) has been notable for trust practitioners largely due to the complex conflicts of trust law issues which were raised between the parties. In particular, the judgment provides helpful commentary on the Hague Convention on the Law Applicable to Trusts and on their Recognition (the Trusts Convention) and certain English law principles concerning trusts of foreign assets and transactions over trust property. However, it is perhaps insolvency practitioners who will be most interested in the Supreme Court’s ruling in this case, which confirmed that the power of the English court under s127 of the Insolvency Act 1986 to declare a disposition of property belonging to a company after it has been placed in liquidation to be void did not apply to the sale of property, which was held for the company on trust.

James Lister evaluates whether the Court of Appeal has established a new approach to disclosure and data protection

In February 2017, the Court of Appeal handed down their judgment in Dawson-Damer & Ors v Taylor Wessing LLP [2017]. In the few weeks since then, much has already been written about the judgment and its impact on trust law and data protection issues alike: does the court’s judgment herald a new approach to well-enshrined principles of disclosure and data use?

Emma Loveday provides some specific examples of the effects of recent reforms to taxation on non-UK domiciled trusts

In the March 2017 edition of Trusts and Estates Law & Tax Journal, I wrote an article entitled ‘Where are we now?’ providing an update on the various government consultations affecting private client practitioners. The consultations included those relating to the reforms to the taxation of non-domiciliaries (non-doms) which came into force on 6 April 2017. In this addendum to the article, I explain in further detail how these non-dom reforms will affect a standard offshore trust structure by looking at two different scenarios before and after 6 April 2017. Since writing the original article, the government has published amendments to the non-dom reforms in Finance Bill 2017, and this addendum incorporates those changes.