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Penelope Reed QC and William East look at the removal of trustees ‘The exercise of the court’s jurisdiction to remove trustees is not dependent on some finding of misconduct or breach of trust; other conduct can also suffice provided that the continuance of the trustee would prevent the trusts being properly executed.’When faced with trustees …
Continue reading "Trustees: Making the break"
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Ruth Hughes reviews case law to present the up-to-date position on presumed undue influence ‘In addition to a relationship of influence, in order for the presumption of undue influence to apply to a transaction, the transaction must be such that it “calls for an explanation”.’Equity protects so that injustice may not be perpetrated. In the …
Continue reading "Presumed Undue Influence: When advice is neither necessary nor sufficient"
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Re G (TJ) has valuable lessons on the role of substituted judgment in statutory wills and gifts, as David Rees outlines ‘The judgment in Re G (TJ) is clearly important as it recognises that the old “substituted judgment” approach still has a role to play when determining P’s best interests under the MCA 2005.’The Court …
Continue reading "Court Of Protection: Giving it away"
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Vinton v Fladgate Fielder gives some indication of the current approach of the courts towards negligent IHT planning, explains Michael O’Sullivan ‘The judge in Vinton v Fladgate Fielder [2010] considered that the claim for breach of contract brought by the claimants in their capacity as executors did have a real prospect of success, citing the …
Continue reading "IHT Planning: The mist has yet to clear"
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Charlotte Simm reviews a case that highlights the need for absolute clarity in will drafting ‘While the vesting of the legal estate in the properties was by force of the assents, in order to ascertain the legal position on the right of way it was legitimate to read and construe the assents and the will …
Continue reading "Wills: Right of way"
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Rachel Mainwaring-Taylor finds Aerostar a timely reminder of how directors must be aware of their duties when dealing with multiple companies ‘From a commercial point of view, that there is nothing preventing an individual from holding the office of director in more than one company. In such circumstances they will be obliged to act in …
Continue reading "Fiduciary Duties: The art of misdirection"
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Zahra Kanani considers the results of a recent consultation over disposal of land by charity trustees ‘The general position, as set out in s36(1) of the Charities Act 1993 is that “no land held by or in trust for a charity shall be conveyed, transferred, leased or otherwise disposed of without an order of the …
Continue reading "Charities: Taking the power back"
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Geoffrey Shindler challenges readers to forecast the future for trusts and estates work ‘No-one is suggesting that human nature has changed, so why is it that we keep being told that the world has changed and unless we change with it there is no future for us?’Christmas is coming, but then so are a lot …
Continue reading "Musings From Manchester: Brave new world"
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Robert Blower and James d’Aquino assess the usefulness of STEP and HMRC guidance for practitioners ‘Prior to introduction of the updated legislation, the definitions of trustee residence for CGT and income tax were sufficiently distinct that trustees could find themselves resident for CGT but not income tax, and vice versa.’In response to widespread concern among …
Continue reading "Joint Guidance: Certainty about trustee residence?"
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Catherine Paget and Scott Taylor discuss removal of executors and trustees from an estate ‘An executor is not usually called upon to make important decisions; their role is essentially to determine the extent of an estate and to distribute it in accordance with the testator’s directions.’This case, decided in February 2010 by Mr Justice Newey, …
Continue reading "Changes To The Will: When the testator’s choice prevails"
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