Articles & Video
Complex offshore structures – traps and pitfalls: a practical guide
There has been a growing trend over recent years for the development of bespoke and complex holding structures to accommodate the needs and sensitivities of ultra-high net worth individuals. Often, the clients originate from civil law jurisdictions and as a consequence are unfamiliar with trusts and the fiduciary relationship created. There is (understandably) suspicion.
It is trite law that a trust has no legal personality - it is the trustees who are personally liable for the debts (and other liabilities) of a trust, subject to a right of indemnity from the trust fund where such liabilities are properly incurred.
Litigation and Privilege: when is there really a dispute?
The cloak of privilege can be an invaluable tool in any legal matter providing the security of knowing that communications or advice will not at some later date become disclosable to an adverse party.
Trust Law Amendments
The Trusts (Amendment No. 7) (Jersey) Law 2018 (the Amendment Law), which came into force on 8 June 2018, refines and further enhances Jersey's trusts legislation, the Trusts (Jersey) Law 1984 (the Law). Here, Carey Olsen senior associate Nichola Aldridge summarises the key provisions of the Amendment Law.
The Court of Protection in Re HH  has returned to the vexed question of the court’s power to retrospectively approve payments made by attorneys who have exceeded the very limited powers of gifting prescribed by the Mental Capacity Act 2005 (MCA 2005).
Hastings Bass in the Channel Islands
The rule (or principle, as it is often referred to) is taken from the decision in Re Hastings Bass in the English Court of Appeal in 1975.
The Order of The Hammer
Baron Trevor at the age of 64 delivered his maiden speech in the House of Lords. He had waited 43 years to do so on the principle of speaking only when he had something to say. Though with less compulsion than Baron Trevor, I did feel the urge to write this reflective article as I enjoyed the wonderful view of the Bay of Panama with pelicans gliding across the skies as a radiant sunset was giving way to dusk. Many thoughts came to mind.
Setting aside subsequent transfers to trusts - Jersey's statutory law of mistake in operation
The enactment of the Trust (Amendment No 6) (Jersey) Law 2013 (Amendment 6), saw Jersey introduce a statutory basis for relief to be granted for mistake in the form of Article 47E of the Trusts (Jersey) Law 1984 (the Law). There have been a number of decisions of the Royal Court in this area since then, although until the decision in In the Matter of the D, E and F Trusts those cases were decided on the basis of the pre-existing law.
The Guernsey Register of Beneficial Ownership - what you need to know
The Beneficial Ownership of Legal Persons (Guernsey) Law, 2017 (the Law) finally received Royal Assent on 25 July 2017 and is scheduled to come into force on 15 August 2017.
Anyone following the progress of the Law will be aware that it was originally expected to take effect from 30 June 2017. Whilst commencement has been delayed it is important to note that the original timeline for compliance with the Law remains unchanged.
Variations of Jersey trusts: relevance of settlors’ views and public policy
The Royal Court of Jersey has recently approved (on behalf of minor, unborn and unascertained beneficiaries) variations of two trusts established by a late Settlor whereby the beneficial class of each trust was to be widened beyond the parameters that the Settlor had set out during his lifetime.
In considering the application, the Court made observations about the relevance of the Settlor’s firmly held views to the Court’s discretion to approve the variation, and also addressed potential issues of public policy.
Beddoe relief where a third party claim may exhaust Trust assets
The Grand Court of the Cayman Islands has granted Beddoe relief to a trustee, in circumstances where a successful third party claim would have exhausted the trust assets.
Probate in international litigation
Several recent decisions have highlighted some of the issues that can arise where those claiming through a deceased person are parties to proceedings in a place other than the place where the deceased was domiciled.
Hot off the Press: On SRIP trusts, Singapore blinks… Or, is that a wink?
On 18 July, Singapore published adjustments to its OECD CRS FAQs (available here), featuring modification of the guidance on settlor reserved investment power (SRIP) trusts. In the prior version of the FAQ (as analysed in my blog of 25 April), the Inland Revenue Authority of Singapore (IRAS) stated in FAQ B.5 that a SRIP trust would not qualify as an FI because the manager of the assets held by the trust (i.e., the settlor) would not itself be an FI. The revised version is no longer so certain.
New Act targets facilitation of tax evasion
On 27 April 2017, the Criminal Finances Act 2017 (UK) received Royal Assent. It is expected to come into effect in September 2017, and will introduce the new corporate criminal offence of failing to prevent the facilitation of tax evasion. The Act will have extraterritorial effect and potentially render financial services businesses in the Channel Islands, and more broadly, criminally liable for the acts of their employees in connection with tax evasion.
Time to Renew the FFI Agreements
Upon registration for a GIIN via the IRS FATCA Registration Portal, certain FIs (i) subject to a Model 2 IGA, or (ii) not subject to any IGA automatically entered into a contract with the IRS known as the FFI Agreement. The FFI Agreement sets forth the FI’s rights and responsibilities (with responsibilities outnumbering rights heavily).
Beddoe Relief: Case study from the Grand Court of the Cayman Islands
In the case of X (as Trustee of the A Trust) v Y (as Beneficiary of the A Trust) (unreported) 15 March 2017, Smellie CJ, the Grand Court of the Cayman Islands granted Beddoe relief to a trustee in circumstances where a successful third party claim would have exhausted trust assets. Partner Rachael Reynolds and Associate Shaun Maloney assess the decision's potential ramifications
The Difficulties (but not impossibility) of Challenging Wills Prepared by Solicitors
In recent years we have noticed an increase in claims being brought which challenge the validity of a will. The reasons for this increase have been previously commented on by many, but the general feeling is that an increasing elderly population, an increase in the diagnosis of medical conditions such as dementia, and even perhaps a growing sense of entitlement by hopeful beneficiaries are all contributing factors.
Future statutory changes to the law of trusts in Jersey
The Chief Minister’s Department in Jersey has very recently published a Consultation Response and Policy Paper on proposed amendments to the Trusts (Jersey) Law 1984 (the TJL 1984). The contents are highly significant for anyone involved with the trusts industry in Jersey. This briefing note therefore sets out what we can expect in terms of amendments in the near future as well as highlighting other potential future areas of change.
Disclosure to Successor Trustees
The Investec litigation in Guernsey has done much to enrich our trust law, not to mention our trust lawyers. Numerous points have come before the Royal Court and the Court of Appeal and some are slowly trundling towards the Privy Council.
IHT & Non-UK Charities: Was the residue of an estate ‘given to charities’ for IHT purposes?
The Court of Appeal has confirmed that a legacy to non-UK charities did not qualify for the inheritance tax exemption in IHTA 1984 s.23 as it was not ‘given to charities’. The question of whether this interpretation complies with EU law was deferred to a later hearing