Last updateTue, 24 Feb 2015 5pm

Trusts and Estates Law and Tax Journal: November 2014

Geoffrey Shindler argues that it should be a legal requirement to make a will

We like to think that we live in a ‘free society’. I think what we mean by this is that we are not subject to totalitarian regimes where the rule of law has no meaning other than what the dictator wants it to mean on any one day. When we enter into profound discussions about the world in which we live the rule of law is one of the underlying and paramount principles behind our thinking. Just as there used to be arguments as to whether the ability to think and feel distinguished man from the animals, so the rule of law distinguishes civilised society from the opposite: anarchy, chaos and the whims of villainous, and usually corrupt, leaders. But of course in any form of society there has to be rules. At one point in time the basic rule was that your freedom ended at the end of my nose. In other words gratuitous violence by one person against another was not acceptable; a physical assault by one human being on another was, and still is, an unacceptable exercise of freedom and therefore there have to be sanctions either to prevent or to punish.

Mark Herbert QC discusses the implications of Shergill v Khaira

In Shergill v Khaira the Supreme Court has given an important ruling on the courts’ jurisdiction to make findings about religious doctrines and practices. To quote from the court’s own press summary:

Mary Ashley

Mary Ashley gives an update on the long-running case of Buzzoni v HMRC

The reservation of benefit rules in relation to inheritance tax (IHT) have always been a hiccup in the planning context. This has led to the creation of innovative schemes to attempt to get around them. Buzzoni v HMRC [2013] is an example of just such a scheme – specifically a reversionary lease scheme – the aim of which was to lower the total value of the estate taxable on death. While in the First Tier Tribunal and the Upper Tribunal, it looked like another example of a scheme that could not withstand the courts, ultimately, in the Court of Appeal, it was held that the scheme worked. Though on its face, Buzzoni appears to be a great win for the taxpayer, in reality it may not make that much difference to the policing of these types of tax avoidance schemes.

Siân Hodgson examines the dangers of informal farming arrangements between family members in Creasey v Sole

Creasey v Sole [2013] was a dispute between six brothers and sisters about farmland in the Isle of Wight which was owned by their parents. The case raised a number of issues, including the effect of a conditional gift in a will and whether one of the sons could remain in occupation of the land, but this article focuses on the claim raised under the Agricultural Holdings Act 1986 and the proprietory estoppel claim.

Victoria Sara-Kennedy considers Al-Sadi v Al-Sadi a departure from the usual costs rule on discontinuance

What can a claimant do when their claim is undermined by evidence disclosed late in the day, the loss of a key witness or a change of mind by a key expert?

Hugh Cumber finds Parry v HMRC provides welcome clarity of the circumstances in which IHT can arise in pension schemes

Some of the circumstances in which a charge to IHT may arise in relation to pension schemes were recently considered by the First Tier Tribunal in the case of Parry v HMRC [2014]. This case was an appeal by the executors of the estate of Mrs Rachel Staveley against two assessments to IHT relating to two alleged transfers of value made by Mrs Staveley. The alleged transfers arose from Mrs Staveley’s dealings with two pension schemes in October 2006 immediately prior to her death in December 2006:

Farrer & Co

Adam Carvalho and Lizzy Sainsbury set out two cases where the courts had to consider whether a refusal to mediate was reasonable

Lord Justice Mummery opened his judgment in Hawes v Burgess [2013] with a stark reminder that litigation is not always the best solution to trust and probate disputes:

Gowling WLG

The current state of play with HMRC v Murray Group Holdings has lessons for lax trustees. Catharine Bell and Nicole Aubin-Parvu provide an update

The unsuccessful appeal by HMRC in HMRC v Murray Group Holdings against the 2012 decision of the First-Tier Tax Tribunal once again highlights the importance for trustees of maintaining their independence and impartiality and exercising their discretion in strict accordance with the terms of their trust.