Articles & Video
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.
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.
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.
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.
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
Developments in UK Real Estate Taxation in Recent Years
For decades, the UK has welcomed overseas investors with interests in residential and commercial properties with its benign tax regime. Admittedly there had been a few mildly irritating snags: an increasingly high stamp duty land tax (SDLT), unavoidable taxation of rental income, and inheritance tax issues. These may have been mitigated with the help of foreign property owning companies and various debt instruments, whose costs were dwarfed by the ensuing benefits.
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.
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
Buy-To-Let Landlords: Yet Another Stealth Tax?
Over the last couple of weeks there has been much discussion over the possibility that Buy-To-Let landlords may find themselves subject to income tax at rates up to 45 per cent on any gain they make when disposing of a property, instead of capital gains tax at 18 per cent or 28 per cent. HMRC has provided reassurances but the legislation needs to be far clearer
Disclosure Of Information By Trustee A Need To Know
It is not uncommon for a settlor to impress upon a trustee the wish that under no circumstances should his family be told anything about the trust he has just settled for their benefit.
Principal Private Residence Relief: Time to Rebuild?
Tax reliefs and their use continue to come under scrutiny, and Principal Private Residence (PPR) relief from capital gains tax is currently in the firing line. A recent National Audit Office (NAO) report highlighted “scope for wide-scale misuse” and called for more scrutiny, in respect of PPR in particular, due to the £18bn cost to the Exchequer each year. But what is PPR, has it gone wrong and, if so, how can we fix it?
Taxing Times: A Briefing Note On AB v CD
On June 30 2016 Her Majesty's First Deemster, Deemster Doyle, delivered a judgment in the case of AB v CD, in which Kevin O'Loughlin and Christopher Arrowsmith of Simcocks acted for the Defendant trustee, CD, and Gillian Christian of Keystone Law and Robert Ham QC acted for the Claimant, AB. This is the first
Trustees: To Be Or Not To Be “Momentous” – Trustee Court Applications In Guernsey
As a trustee, the issue of whether a particular decision is “momentous” is often clear, as is the need to apply to court for its blessing of that decision.
Contentious Trusts Case Summaries 05/08
We summarise below two recent notable judgments of interest in the area of contentious trusts.
Tottenham Secures Win Against Hmrc Over Player Termination Fees
In Tottenham Hotspur Ltd v HMRC  UKFTT 0389 (TC), the First-tier Tribunal (FTT) has allowed the taxpayer's appeals and concluded that the transfer fees paid in respect of two football players were not payments made "from" the players’ employment and therefore were not subject to income tax or national insurance contributions (NICs) under section 9, Income Tax (Earnings and Pensions) Act 2003 and section 6, Social Security Contributions and Benefits Act 1992, respectively.