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Trusts and Estates Law and Tax Journal: September 2013
DWF

Geoffrey Shindler contemplates how trust and estate practice has changed over the last 15 years

If you were asked what have been the most important changes to occur in trust and estate practice over the last 15 years what would be your reply? Certainly the globalisation of the world, so that clients living in a high-tax onshore country may establish a trust in an offshore country, with a company owned by that trust in yet another offshore company, which in turn owns a company in a high-tax country where the manufacturing or other substantive activity takes place. None of this is new, but what is new is the speed with which the entities can communicate with each other and with the clients, whether the clients are the entities or the original settlor/founder. I often wonder why we all spend so much time in airport lounges when the power of television and inter-office connectedness is so great. You can even see the whites of people’s eyes, the usual reason given for needing to meet face to face.

Philip Youdan and Russell Simpson look at Page v Hewetts, which provides guidance on issuing a claim in accordance with the Limitation Act 1980

The recent case of Page v Hewetts Solicitors [2012] considered the following issues:

Brudenell-Bruce offers salutary lessons about the self-dealing rule, as Simon Atkinson explains

For chancery practitioners Brudenell-Bruce (Earl of Cardigan) v Moore and Cotton [2012] provides valuable guidance in a number of areas. The judgment of Newey J touches on the construction of deeds, the distinction in land law between fixtures and chattels, and self-dealing by trustees.

David Schmitz considers whether the will must be present when a testator acknowledges their signature to witnesses

The principles governing the making and the attestation of wills were set out in 1837 and were brought up to date in 1982 by the Adminstration of Justice Act, when the Wills Act 1837 was amended. Notwithstanding that a somewhat basic point is still open to argument, namely whether when a testator acknowledges their signature to the witnesses (as opposed to signing it in front of them), does the will have to be visible to the witnesses at the moment of the acknowledgment even if each of the witnesses has previously seen the signature?

Lynsey Oakdene and Camilla Dalzell discuss the definition of a Quistclose trust and the circumstances in which a court will find that one exists, following Tuthill

In private client work, clients and firms regularly need to transfer monies to third parties to complete a deal or to perform a specific purpose. To some extent those involved rely on the protections provided by common law to protect their funds in those circumstances, often trust law. The recent case of Tuthill v Equine FX Ltd [2013] highlighted the issues that can arise and this article considers how a Quistclose trust (a form of purpose trust) comes into being, and the practical requirements to bring such a trust into existence.

Spurling v Broadhurst confirms the court’s current approach in placing emphasis on the intention of the testator rather than strict rules of will construction. Daisy Boulter investigates

In Spurling v Broadhurst [2012] the court determined the true construction of the residuary gift in the will of Ronald Gibbons, deceased, in accordance with the available evidence of the testator’s subjective intentions. Spurling is an example of the modern approach to the construction of wills in which less reliance is placed on the strict traditional rules of construction in favour of what the testator intended. This is far more consistent with principles of contractual interpretation.

Sarah Clune examines the Charity Commission’s consultation on rules for total return investment

Significant changes are afoot for permanently endowed charities. Section 4 of the Trusts (Capital and Income) Act 2013 (the Act) amends the Charities Act 2011 and gives the Commission power to make regulations setting out the details of how permanently endowed charitable trusts can exercise the power to adopt and operate a total return approach to investment. In April 2013, the Charity Commission launched a consultation on the draft Charities (Total Return) Regulations 2013. The consultation closed on 20 June, with the new regulations expected to be ready for use by October 2013.

Sian Hodgson gives the lowdown on executor’s costs in litigation, with reference to the recent case of Taylor v Saunders

The issue of an executor’s costs in legal proceedings is often a contentious one. Should an executor be entitled to their costs from the estate regardless of the position they have taken in litigation or the involvement they may have had with regard to the preparation of the will that is the subject of dispute, or not?