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Musings from Manchester: Updating trusts

Geoffrey Shindler examines the scope of the Law Commission’s latest project I am sure none of us will object to a wholesale review of trust law so long as it is done on the basis that there are problems which need to be resolved. What we do not need is reform, ie change, for its …
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Wills: Trial and error

Alexander Learmonth QC and James McKean report on a case on construction and rectification If the will does not accord with the deceased’s intentions, the wrong is irreversible. Correcting that wrong must be more important than classifying how it came about. There is a will, a company, and two beneficiaries. The will gives 26% of …
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Testamentary capacity: Goodfellow for our times

Lucinda Brown and Judith Swinhoe-Standen consider delusions and testamentary capacity following Clitheroe v Bond Given the varying circumstances of testators, there is unsurprisingly a considerable grey area in defining what kinds of beliefs are delusional for the purposes of testamentary capacity. The judgment of Clitheroe v Bond, handed down on 4 May 2021, was eagerly …
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Fiduciary powers: Stocktaking

Stephen Alexander explores when it is possible to exclude a beneficiary under a discretionary trust Typically, if a beneficiary is excluded from a class by way of exercise of a power of exclusion, he or she can take no further interest under the settlement. A power to exclude a beneficiary is a fiduciary power which, …
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The Human Rights Act and wills: An unlikely but relevant pairing

Unsettled wills are not exempt from human rights considerations. Tim Crook and Alfred Gherson discuss Judges will utilise s3 HRA to interpret wills drafted before 2000 (when the HRA came into force) and which were drafted utilising legislation passed before 2000 in their consideration of how to interpret a will or trust. The Human Rights …
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Offshore: No joy for judgment creditors

James Sheedy looks at enforcing judgments against discretionary beneficiaries in Jersey The decision in Kea Investments is simply that a judgment creditor cannot take a shortcut to asset recovery by way of an arrêt. The Royal Court of Jersey has held in Kea Investments Ltd v Watson [2021] that it is not possible for a judgment …
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Jurisdiction: Pakistan or England?

Alexa Payet provides some useful guidance on cross-border probate disputes In deciding whether Pakistan was the natural and more appropriate forum for the trial, the court applied the factors outlined in Spiliada. In the case of Rehman v Hamid [2019], Mrs Ali was born in pre-partition India in 1942. Upon partition Mrs Ali and her …
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Company law and probate: The burden of office

Richard Monkcom, Sadie Cunningham and Harvey Pare set out the steps companies should take to avoid court proceedings in the event of the death of a sole shareholder or director This decision came as a welcome reminder that the court has Companies Act powers which may assist other executors or personal representatives in similar positions, …
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Conflicts of law: Observing the orthodoxy

Richard Dew explores a case which concerns Norwegian law, the question of domicile and the principles of ademption The claimant needed to persuade the court to characterise the issue before it not as one of the division of the estate of Elizabeth but as something else, to which the English court could apply Norwegian law. …
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The Trustee Act 1925: Built to last

Jessica Henson and Charlotte Henshall discuss a rare study of the statutory power of advancement The guiding principle of a power of advancement is that the application of capital must ‘improve the material situation of the beneficiary’. As Benito Mussolini proclaimed himself ‘Il Duce’ of Italy and Virginia Woolf was streaming consciousness in Mrs Dalloway, …
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