Re the Onorati Settlement [2013] JRC 182

Wills & Trusts Law Reports | December 2015 #155

This was an application by two beneficiaries of the Onorati Settlement, a Jersey discretionary trust (the trust), to set aside a deed of appointment distributing the trust fund to them. The application was made under the so-called principle in Hastings-Bass on the basis that the trustee had failed to take into account considerations which they ought to have taken into account when exercising their discretion, namely the UK tax consequences of making the appointment. Their application was on the basis that the Respondent (the trustee) had failed to take adequate tax advice.

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Mistake: Fault lines

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 …
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Futter & anr v HMRC; Pitt & anr v HMRC [2013] UKSC 26

Wills & Trusts Law Reports | July/August 2013 #131

The first appeal concerned two settlements, made with non-resident trustees, by Mr Futter. Considerable ‘stockpiled’ gains were rolled up while the trusts were non-resident and, in exercise of the powers conferred by the trusts, new resident trustees were appointed and capital was distributed to Mr Futter and his children in the mistaken belief that the ‘stockpiled’ gains, which would be attributed to them, would be absorbed by allowable losses that had been realised, so that no liability to capital gains tax would arise. In advising as to the effect of s87 of the Taxation a...

AC v DC & ors [2012] EWHC 2032 (Fam)

Wills & Trusts Law Reports | June 2013 #130

Mostyn J granted an application by the applicant (W) to set aside transactions pursuant to s37(2) of the Matrimonial Causes Act 1973 that had been made by the first respondent (H) on about 2 December 2010 by which H disposed of his 86.4% shareholding in D Holdings Limited (DH). None of the respondents opposed the application. There was an issue whether or not the effect of the order operated retrospectively for all purposes, including fiscal purposes. Judgment was reserved and further written submissions were invited to determine whether the order setting aside the transact...

Re the Ta-Ming Wang Trust Cause no. FSD 0089 of 2010

Wills & Trusts Law Reports | January/February 2013 #126

The first plaintiff (TMW) and members of his family are the beneficiaries under the Ta-Ming Wang Trust (the trust). The trust was intended to take advantage of a well-established tax-saving structure under which a foreign national such as TMW immigrating into Canada could obtain a five-year Canadian tax holiday on foreign source income earned by a non-resident company, owned by a non-resident trustee; ie on income by way of dividends paid by the company to the trust during the five-year tax holiday. It was established by a settlement dated 2 May 1996 made between TMW’s mother as settlor ...

Trustees: Hastings-Bass overturned?

Marilyn McKeever looks at the implications for trustees and their advisers in the pivotal case Futter v Futter ‘The purpose of the rule in Hastings-Bass was to protect the beneficiaries, not the trustees. The effect of the new rule in Futter is to reduce that protection significantly.’ In Futter & anor v Futter & ors …
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