May 2020 #216 – Law Journals

Trustees: Unanswered questions

Elizabeth Ovey examines the position on the exercise of discretionary powers for an improper purpose ‘In practice, it does not usually matter whether a restriction not expressed in the relevant instrument is imposed as an implied term through a process of construction or by reference to the improper purpose test; in either case the exercise …

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Trusts: When is a beneficiary not a beneficiary?

Timothy Sherwin examines the importance of s53 of the Trust (Guernsey) Law and the rule in Saunders v Vautier Discretionary beneficiaries cannot be said to have an immediate, vested and indefeasible interest in the trust property. This article considers the decisions at first instance and on appeal, in Rusnano Capital AG (in liquidation) v Moland …

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Court powers: Privacy and parentage

Laura Abbott looks at the rise in DNA testing in will and trust disputes ‘DNA testing is likely to become more and more commonplace and the courts appear to be more readily inclined to order where consent is not forthcoming.’ Using DNA testing to determine parentage recently hit the headlines when the Belgian King, Albert …

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Litigation: A calculated risk?

Emily Campbell examines how to calculate the odds of winning a case ‘There is no industry-standard system for evaluating prospects of success. Many lawyers may put themselves in the position of the judge and decide in the first instance whether the client wins or loses.’ Since I started practice in 1995, expressing prospects of success …

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Tax: Using HMRC forms wisely

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John Elliott gives the lowdown on some essential admin for trusts and estates ‘The R185 shows the income received in the trust or estate and the rate and amount of tax that the trustees or executors have paid on this income. The beneficiary uses this information to offset their own tax liability.’ The R185 (Trust) …

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Rectification: Which law applies?

Kelly v Brennan [2020] provides welcome guidance on whether the court can rectify a foreign will and on time limits. Josh Lewison explains ‘Rectification is often run in the alternative to a construction claim. Construction claims have no time limit, so that if the court were inflexible in granting time extensions, the temptation would be …

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Guest editorial: Much misunderstood

Elizabeth Neale urges practitioners to speak up for trusts ‘Trusts allow the big picture to be looked at and if trustees and beneficiaries can work together, then the original 12th century objective – the long-term protection of beneficiaries and assets – can be achieved.’ Trust practitioners might be forgiven for feeling somewhat under siege. A …

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