Last updateTue, 24 Feb 2015 5pm

Trusts and Estates Law and Tax Journal: November 2013

Geoffrey Shindler awaits possibly the first judicial review over a disputed royal resting place

I would venture to suggest that most of us can put a large part of our fortune, large or small, on the fact that the concept of the judicial review was unknown in the year 1485. But let us backtrack a little before considering that point further.

Sharon Kenchington finds that NT v FS sets out useful guiding principles on determining ‘best interests’, in a rare reported case

Before the Mental Capacity Act 2005 (MCA 2005) came into force in October 2007 the Mental Health Acts of 1959 and 1983 governed the court’s authority to make decisions in relation to the affairs of adults who had lost capacity. The Administration of Justice Act 1969 enabled the court to approve a will on behalf of an incapacitated person, and in deciding what that statutory will should contain the court used a process of substituted judgement. This involved stepping into the incapacitated testator’s shoes to determine what they would reasonably have done, having regard to their specific circumstances. The process was based on an assumption that the testator would be having a brief lucid interval during which they would fully recall the past. In the absence of any detailed information about the testator the court adopted the assumption that they were ‘a normal decent person acting in accordance with contemporary standards of morality’.

Martyn Frost

Martyn Frost discusses an important point on reserved instrument activities arising from the Legal Services Act 2007

There is a puzzling, but important, issue on the interpretation of a reserved instrument activity that arises out of the definition of reserved instrument activities in para 5, Schedule 2 of the Legal Service Act 2007 (the Act). Paragraph 5(1)(c) refers to ‘preparing any instrument relating to real or personal estate for the purposes of the law of England and Wales…’ The definition used previously in s22(1)(b) Solicitors Act 1974 was:

Ruth Hughes looks at the lessons from Re Theodore; Zarrinkhat v Kamal, which concerned a claim by an adult under the 1975 Act

The case of Re Theodore ; Zarrinkhat v Kamal [2013] concerned the estate of Mrs Theodore. She left Iran in the late 1950s and originally moved to Germany. In 1960 Mrs Theodore returned to Iran while her daughter Haydeh was cared for by foster parents in Germany. Haydeh moved back to Iran in 1967 to live with her parents and her brother Fariborz. The family then moved to Italy, where Mrs Theodore’s marriage broke down. She divorced in 1978 and settled in England. Eventually she was able to sell her property in Iran and remit the proceeds to England. She married again (her husband died in 2004) and owned property in London. Haydeh moved to Germany in 1980 and Fariborz settled in the US. Both Haydeh and Fariborz were in their mid-50s at the time of the claim. The only relative that Mrs Theodore saw regularly was her niece Yasmin when Yasmin’s partner (a diplomat) was resident in London.

Vallee v Birchwood clarifies the doctrine of donatio mortis causa. Jennifer Lee explains

This article aims to provide a short overview of the law in relation to donatio mortis causa – a gift made in contemplation of death – in the light of the recent decision in Vallee v Birchwood [2013].

Stephanie Howarth investigates a case that considers whether charities relief applies when charities act as joint purchasers with non-charitable bodies

Charities are major landowners and, of course, need premises from which to operate, for example, as administrative offices, fund-raising centres, shops and/or residential or other buildings for their work. In order to assist charities in their work there are a number of tax reliefs available, including a relief for Stamp Duty Land Tax (SDLT). The rules relating to SDLT have recently been challenged in the courts in respect of whether a charity can claim SDLT relief when it is a joint purchaser in a transaction alongside other purchasers which are not charities. This is, in our experience, a relatively unusual scenario, since most charities prefer sole ownership without the complication inherent in the intermingling of their funds with those of other organisations. However, the courts have recently reviewed the SDLT effect for charities of such arrangements.

Catharine Bell and Nicole Aubin-Parvu review a case that highlights the importance for trustees of impartiality and independence when handling EBTs

The decision of the First Tier Tax Tribunal in Murray Group Holdings v Revenue and Customs Commissioners was published on 20 November 2012. This was the case involving the use by Glasgow Rangers Football Club of employee benefit trusts to make loans to footballers and other employees. The tribunal was unable to reach a unanimous verdict, finding in favour of the Group by a two-to-one majority.

Low Ah Cheow v Ng Hock Guan reveals the risk of delegating will drafting without care in conveying the testator’s intentions. Nisha Singh examines the case

There have been several Singaporean cases in recent years where the courts have restated the professional duties of solicitors who undertake the task of preparing wills. The appeal in Low Ah Cheow v Ng Hock Guan [2009] centered on the construction of the will of the late Ng Teow Yhee (the testator). Under the terms of the will the testator appointed his son Ng Hock Guan (Sebastian) as the sole executor and trustee and gave the whole of the estate to Sebastian on trust to be distributed to Sebastian (emphasis in original). The testator’s wife and other children sought a declaration that Sebastian was only a trustee and was not a beneficiary of the trusts or the estate. The judge at first instance was of the view that the testator gave his entire estate to Sebastian in the expectation that he would do the right thing by the wider family but no legal obligation was imposed on him. Accordingly, the judge held that Sebastian took the estate absolutely.