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Trusts and Estates Law and Tax Journal: October 2013

Geoffrey Shindler discusses the current focus on business ethics and cultural attitudes and how these affect the private client relationship

This year may – or then again may not – be remembered as the year of the Retail Distribution Review. Not something that affects our business directly, but I have struggled, ever since I have heard of the concept, to understand what it has to do with either retail, business or review. 2013 might also be remembered for the year in which the Financial Services Authority was split into two, another activity by those in authority that ceases to impress me as resulting in a better way of running the country. One article I read recently suggests that there has been a major change in the attitude of the two new replacement authorities, the Financial Conduct Authority and Prudential Regulatory Authority, and that this will impact in a major way on those being regulated. Apparently the changes are to concentrate on behavioural issues such as business ethics and cultural attitudes, particularly in the behaviour of senior management, and also to focus on the manner in which business is conducted. So they will no longer be looking only at the rule book but will take a view on broader issues of morals and outcomes.

Withers LLP

Prest emphasises that it is unfeasible for the Family Division to take a differing approach to other divisions when piercing the corporate veil. Suzanne Todd explains

Most people are familiar with Jane Austen’s introduction to Pride and Prejudice:

Emma Jordan and Patricia Boon assess the impact of the US’s FATCA on trusts

The US government published the final regulations under the Foreign Account Tax Compliance Act (FATCA) in January. The following paragraphs explore the likely impact that FATCA may have on trusts and trustees. This article also explores how developments in the drive to combat tax evasion by the US authorities have influenced, and been a model for, existing and proposed information exchange agreements currently being negotiated between the UK and offshore jurisdictions, as well as the impact of proposals by foreign governments and the EU Commission to effect measures that will allow easier information sharing capability between tax authorities.

The Court of Appeal case of Thomas v Jeffery reminds practitioners that even late disclosure does not fetter a judge’s discretion on costs. Laurie Scher reports

Mr Thomas had been cut out of his father’s will following a rift between them. Instead, the father (whose name was Mr Spry) left his residuary estate to the granddaughter of a close friend.

Laura John sets out the lessons to be learned from Challinor v Bellis on handling the client account

This article considers the issues of evidence and principle in dispute in the main claim of Challinor v Bellis [2012] (not the Part 20 claim made by the defendant solicitors against Mr Egan) and their potential ramifications for trusts and estates practitioners. The facts of this case were complicated and the judge’s findings of fact/evidence extended to over 100 pages of the judgment. A very brief summary of the case is set out below.

Marilyn McKeever examines the UK treatment of usufructs

HMRC has confirmed its view of the inheritance tax status of a usufruct in its Trusts and Estates Newsletter for April 2013. But what is a usufruct anyway? Why should we, as UK lawyers, care? And what other tax implications are there?

Alastair Collett and Tim Hayes discuss some of the perils at the intersection of the private client and immigration worlds, perils increased by stringent new rules

For many, private client work is fascinating because of the endless variety of human situations to which practitioners apply laws and tax rules that, in themselves, can sometimes be rather dry. That very variety brings with it, however, its own rocks and shoals. One of these is the danger of the practitioner failing to appreciate that, although they can help the client with problems within their own field, the client also needs advice on other legal problems outside the practitioner’s immediate skill set. Those problems may sometimes be ones that, if not tackled, can mean the practitioner’s beautifully crafted advice is almost irrelevant.

Forsters LLP

Simon v Byford demonstrates that the courts will not set aside lightly a will because the testator has failing cognitive faculties. Harriet Atkinson and Zahra Kanani analyse the case

There has been a sharp rise in the number of disputes concerning the validity of wills. Increasing property values means estates are getting bigger and, with an ageing population, there are greater numbers of people suffering from diseases such as Alzheimer’s and dementia. It is often wills made later on in life that end up being challenged on the grounds that the testator lacked the requisite testamentary capacity to make the will.