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
Donald Trump & The International Tax Payer: What Can we Expect?
For many the election of Donald Trump as president was a huge surprise, but perhaps less remarked upon and yet not any less of a surprise was the Republican party’s ability to capture control of both houses of congress. Although President Trump can propose and veto legislation, ultimately it is congress which decides on the detail of legislation, and it is likely that it will be the ability of Republicans to control congress which may have the largest long term impact.
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.
FATCA - Where are we now?
Given various unexpected results over the last 18 months (general election, following Brexit and trump as surprise votes), I have abandoned any attempts to predict what the future may hold.
This equally applies to the future of the Foreign Account Tax Compliance Act (FATCA) There is certainly a ground swell for the complete repeal of FATCA but is that likely and what would that mean in the context of the global acceptance of the Common Reporting Standard (CRS)? In fact, the Administration of President Trump has been somewhat silent on this point.
Tax Planning for Ownership of US Real Estate
ax rules governing US property ownership are insufferably complex and can have different implications for residents and non-residents. In this article, we outline some key considerations for prospective and existing US property owners.
You may be looking to buy a holiday home near Disneyland or have your eye on a potentially lucrative real estate investment opportunity. Either way, tax planning can be a minefield and throw up all kinds of challenges.
What might be considered a sensible move from an income tax or capital gains tax planning perspective, can present unwanted results from an estate or gift tax perspective and vice versa.
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
ATED CGT & NRCGT: FAQs
In anticipation of the inheritance tax changes, which the Government has confirmed will come into force in April 2017, many individuals and advisers are looking at bringing UK residential property holding structures to an end.
The reason for getting UK residential property out of such structures (de-enveloping) is that corporate structures will no longer provide any inheritance tax protection for UK residential property once the changes come into force. This could leave clients in a "worst of all worlds" situation where:
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.
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
How To Be Art Smart: Tips For Trustees
How to be art smart: We set out a brief summary of the various pitfalls trustees should be aware of when dealing within the art market…