Wills & Trusts Law Reports | Summer 2017 #168This was an application by the defendant firm of solicitors (D) for the particulars of claim and reply to be struck out on the ground that they disclose no answer to the limitation defence or summary judgment dismissing the entirety of the claim on the basis that the claimant (C) has no real prospect of success because the claim is statute barred.
The proceedings arose out of a family dispute concerning a charitable trust (F) established by the deceased (OM). By his will OM left his shares in a Jersey investment company (JY) and in the trustee company of F (YT) to the executors an...
Mark Pawlowski examines the presumption of a resulting trust where assets are owned by a company ‘Where the funds for purchasing the assets come from the company controller, the likely approach (absent any contrary intention) is to apply resulting-trust theory so as to treat them as beneficial owner.’ In what circumstances is it open to …
Continue reading "Trusts: A fair result?"
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Keith Wallace makes the case for using a trust corporation ‘Any risk-averse professional firm should be seeking to consolidate its trusteeship work centrally to avoid regulatory and reputational exposure for any non-compliance.’UK trusts are said to number 170,000, according to gossip around the register of trusts being compiled by HMRC. Most of these will be …
Continue reading "Trusts: A long-term solution"
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The Cayman Court has provided clarity over what happens in the event of absent or defective protector consent. Robert Lindley explains ‘There was potential for payments to beneficiaries and trustees, investment decisions, and the administration of business assets to be considered invalid as they had been made without the authority of all of the trustees.’Any …
Continue reading "Trusts: 30 years’ flaw"
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Nigel Sanders examines changes of trustees and protectors in contentious circumstances ‘The court held that the appointment of the new trustee and removal of the trustees were such closely linked decisions and exercises of the powers of appointment, that they stood and fell together.’Most modern trust instruments will contain provisions which grant certain individuals the …
Continue reading "Trusts: Do your homework"
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Claire Blakemore suggests that when dealing with trust assets, even the powers of the family courts have their limits ‘Any inconsistencies between how the trust is used or the trust documentation and the presentation to the court can have a significant impact on the outcome.’ The law on the treatment of trusts on divorce is …
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Wills & Trusts Law Reports | December 2016 #165A trustee (T) of Bermudian trusts applied to the Bermudian court by an originating summons for directions. The originating summons named the settlor and principal beneficiaries as defendants. The application invoked the Bermudian court’s supervisory jurisdiction over Bermudian trusts.
The issue arose as to whether T needed leave to serve the originating summons on four overseas resident defendants.
Held:
- 1) Leave for service of an originating summons out of the jurisdiction is not required for non-contentious applications by Bermudian trustees for directions ...
Wills & Trusts Law Reports | December 2016 #165This case involved a claim by one of the trustees of the Pemberton Settled Estates, originally created on 31 March 1965, for a variation of the settlement. The first to third defendants were the other trustees of the settlement who had in mind the unborn and unascertained beneficiaries. There were also four adult defendants and four defendants who were minor beneficiaries. All defendants supported the variation.
The claimant proposed the following variation:
- a) to set the perpetuity period running afresh for a further 125 years;
- b) to confer on the trustees a...
Katherine Hallett highlights a case that demonstrates the weight the court gives to the fact matrix when considering a possible declaration of trust ‘Practitioners should not refer to a “trust” unless they do actually intend to import the full legal meaning of that word into their document.’ Mr and Mrs Singha divorced in 2010. A …
Continue reading "Trusts: When is a ‘trust’ not a trust?"
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Peter Steen and Robert Hines examine firewall legislation and the tension between legal fairness and economic expediency ‘It is evident that provisions of firewall legislation will prevail over questions of comity in circumstances where action by the trustees would result in them exceeding their powers under the trust.’ Asset protection, rather than legitimate tax mitigation, …
Continue reading "Trusts: Finding a way"
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