Wills & Trusts Law Reports | June 2015 #150The trustees of a settlement dated 16 December 2003 made by the first claimant, Brian Kennedy, (the settlement) sought an order to correct a mistake made in the terms of an appointment dated 1 October 2008 (the October 2008 appointment).
Under the terms of the settlement, of which Mr Kennedy was originally the sole trustee, Mr Kennedy had a life interest in possession. The settlement contained a power of appointment exercisable by the trustees in favour of Mr Kennedy, his children and remoter issue. In default of appointment, the capital was held on trust for Mr Kennedy’s children...
Mark Studer reflects on the lessons from Wright v National Westminster Bank Plc [2014] ‘In the events which happened… Mrs Wright as spouse of the settlor would not be able to receive income from the trust fund at any time after its constitution while Mr Wright was still alive.’ Prior to the decision of the …
Continue reading "Equitable Mistake: After Pitt v Holt – the law in practice"
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Kennedy v Kennedy [2015] expands the horizons of the doctrine of mistake. Steven Kempster and Sarah Aughwane explain ‘If a trustee makes a causative mistake of sufficient gravity, the transaction is voidable even if the mistake is as to the tax consequences.’ Two years ago the Supreme Court heard the joined appeals in Pitt v …
Continue reading "Mistake: Fault lines"
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Robert Gardner looks at how Jersey trustees should avoid a breach of duty when faced with the risk of tax liabilities, with reference to the Onorati Settlement ‘Trustees should, as a minimum, ensure tax advice is received (and reviewed by the trustee) when transactions with possible tax exposures are entered.’ Jersey trustees have received little …
Continue reading "Jersey: Reducing exposure"
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Wills & Trusts Law Reports | April 2015 #148On 20 August 2012 Richard Wright signed a discretionary trust of which the National Westminster Bank was the trustee. The beneficiaries named were the widow, children and remoter issue of the settlor. There was a power to add beneficiaries but not the settlor or anyone who has previously added property to the settlement or the spouse of the settlor.
Clause 15 stated that no capital or income could be paid to the settlor, the spouse of the settlor or anyone who had added property.
At the first meeting with the bank the representative of the bank specifically ...
Geoffrey Shindler is perplexed by divergent approaches in major judicial decisions ‘The solicitor got it wrong in Marley v Rawlings and the trustees got it wrong in many of the “Hastings-Bass” cases. So why in one set of cases are the judges prepared to be, shall we say, lenient and in the other cases strict?’Very …
Continue reading "Musings From Manchester: Taking a view"
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Roadchef is a straightforward application of Hastings Bass to an EBT, finds Marilyn McKeever ‘This sorry tale is a reminder to the trustees of employee benefit trusts, pension schemes and, indeed, family trusts that they have onerous duties which they must exercise in the interests of their beneficiaries.’ In the case of Roadchef (Employee Benefit …
Continue reading "Trusts: Trust comes first"
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Mary Ashley examines the lessons from Jersey case In the Matter of the Strathmullan Trust [2014] ‘It was not in dispute that the representor had chosen to create the trust in order to avoid attracting a liability to IHT. His affidavit confirmed that he moved to the Isle of Man and established the trust with …
Continue reading "Trusts: Dealing with mistakes"
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Jennifer Seaman sets out the lessons to be learned from Re Hampel Discretionary Trust ‘It is important to get clear evidence as to the intentions of the parties to the trust deed or settlement up to the date of the deed or settlement and at the time the deed or settlement was executed.’ The remedy …
Continue reading "Rectification: A case of doubt"
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Wills & Trusts Law Reports | November 2013 #134In 2001 Mr Pagel (P) and Mr Farman (F), set up a hedge fund. At first they shared responsibility for marketing and investment equally, but F began to concentrate on investing and P dealt with marketing and client relationships and F began to find the split unfair, so that from 2004 the 50/50 split was renegotiated and F received two thirds of the performance fees, but paid the cost of fixed employee bonuses and shared management fees 50/50 with P. Initially, both partners had to sign confirmations for all withdrawals but from autumn 2006 this only applied to amounts over £5,000. For a nu...
