Financial provision: Out of bounds

In the conclusion to a two-part analysis, Bronwyn Bailey and Ethan Axelrod consider when the courts may give judicious encouragement to trustees to satisfy an order made against a party ‘The court needs to be satisfied that the trustees would be likely to respond to judicious encouragement, so that the required funds would be likely …
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Divorce: A matter of trust

Oliver Auld gives the lowdown on what happens to trusts in the event of a divorce ‘Trustees need to be aware of not only the range of orders the family courts can make in relation to trust assets, but also the strategies they should potentially be adopting in the best interest of their beneficiaries, both …
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Financial provison: Behind the scenes

Amy Harris analyses a case involving the consideration of a resulting trust, inheritance prospects and whether support from a third party could be inferred ‘The husband did not have a beneficial interest in the former matrimonial home as it was subject to a resulting trust and therefore not a matrimonial resource available for distribution.’ In …
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Financial provision: Looking to the future

Ellen Walker considers the treatment of prospective inheritances and when they might constitute a financial resource ‘Whereas normally it would be unfair for the court to rely on a future inheritance that may not materialise, in Alireza the forced heirship laws meant that, absent any evidence to the contrary, the court was perfectly entitled to …
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Trusts: Defined purpose

Fiona O’Sullivan analyses the approach of the Court of Appeal in a case concerned with charitable trust assets ‘Quan v Bray reminds practitioners of the importance of considering family law issues at all stages of trust planning and management.’ In Quan v Bray [2017] the Court of Appeal had an opportunity to consider the status …
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Trusts: A safe foundation

Claire Blakemore suggests that when dealing with trust assets, even the powers of the family courts have their limits ‘Any inconsistencies between how the trust is used or the trust documentation and the presentation to the court can have a significant impact on the outcome.’The law on the treatment of trusts on divorce is constantly …
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Trusts: Finding a way

Peter Steen and Robert Hines examine firewall legislation and the tension between legal fairness and economic expediency ‘It is evident that provisions of firewall legislation will prevail over questions of comity in circumstances where action by the trustees would result in them exceeding their powers under the trust.’ Asset protection, rather than legitimate tax mitigation, …
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Asset Protection: Unauthorised access

Peter Steen and Bethan Byrne consider firewall legislation and analyse the continued conflict with the English Family Division ‘This article explores what chinks there are in the armour of offshore jurisdictions and considers how efforts are increasingly being made to sidestep the firewall rules.’The current buzzwords of the offshore worlds are ‘transparency’ and ‘accountability’. In …
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Third Parties: Crossing the line

Lehna Hewitt reviews the courts’ approach to cases where an order may be made on the basis of assets owned by a third party ‘There will be occasions when it becomes permissible for a judge deliberately to frame his orders in a form which affords judicious encouragement to third parties.’ The recent Court of Appeal …
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P v P [2015] EWCA Civ 447 On appeal from: [2015] WTLR 1 and [2014] EWHC 2990 (Fam)

Wills & Trusts Law Reports | July/August 2015 #151

A husband and wife met in 1999 and married in 2003. They had one child together, of primary school age at the time of the proceedings. In 2005 the husband and wife moved into a farmhouse owned by the husband’s parents. In 2009 the husband’s parents settled the farmhouse on a discretionary trust for the benefit of their children and remoter descendants. Subject to the power to appoint the capital and income to the discretionary beneficiaries, the farmhouse was held on trust to pay the income to the husband for life, and it was declared that the making of any land comprised wit...