March 2011 #124 – Law Journals

Presumed Undue Influence: When advice is neither necessary nor sufficient

Ruth Hughes reviews case law to present the up-to-date position on presumed undue influence ‘In addition to a relationship of influence, in order for the presumption of undue influence to apply to a transaction, the transaction must be such that it “calls for an explanation”.’Equity protects so that injustice may not be perpetrated. In the …

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Court Of Protection: Giving it away

Re G (TJ) has valuable lessons on the role of substituted judgment in statutory wills and gifts, as David Rees outlines ‘The judgment in Re G (TJ) is clearly important as it recognises that the old “substituted judgment” approach still has a role to play when determining P’s best interests under the MCA 2005.’The Court …

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IHT Planning: The mist has yet to clear

Vinton v Fladgate Fielder gives some indication of the current approach of the courts towards negligent IHT planning, explains Michael O’Sullivan ‘The judge in Vinton v Fladgate Fielder [2010] considered that the claim for breach of contract brought by the claimants in their capacity as executors did have a real prospect of success, citing the …

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Wills: Lost in translation

Henry Legge examines some oft-overlooked points concerning international testators ‘If a testator had non-UK nationality, the system of law applicable at the time of execution or their death will suffice. The classic case where this will crop up in English practice is where a testator is resident in England but has a non-UK passport.’In this …

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International Orders: Best interests

Jordan Holland analyses the Court of Protection’s obligations to enforce international orders after Re MN ‘The enquiry into what is in a person’s best interests is one that is, by its very nature, highly fact sensitive and it can be inferred from the lack of any specific guiding principles that the analysis of best interests …

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Charitable Gifts: An episcopal from Acacia Road

The case of Kings v Bultitude has lessons for the failure of a residuary gift as well as casting light on a colourful part of church history, as Barbara Rich finds out In early January 2008, Mrs Pamela Schroder died and left the residue of her estate:To the person who… shall be or act as …

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5 Stone Buildings: A quick catch up

Penelope Reed QC introduces an issue devoted to articles by the barristers of 5 Stone Buildings The members of 5 Stone Buildings are delighted to be back writing for this edition of the Trusts and Estates Law & Tax Journal. Last year proved to be a fertile source of articles with members of chambers involved …

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Trustees: Making the break

Penelope Reed QC and William East look at the removal of trustees ‘The exercise of the court’s jurisdiction to remove trustees is not dependent on some finding of misconduct or breach of trust; other conduct can also suffice provided that the continuance of the trustee would prevent the trusts being properly executed.’When faced with trustees …

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