September 2011 #129 – Law Journals

Trustees: Bare necessities

Christopher Kerr-Smiley sets out the powers and duties of bare trustees ‘The duty to preserve trust property may require bare trustees to continue legal proceedings that are ongoing at the time they become trustees, as demonstrated by CGU Insurance Ltd v One.Tel Ltd (in liquidation) [2010].’All trusts can be categorised as either special or simple. …

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Opinion: Talking heads

Sofie Hoffman argues for a flexible model of mediation to avoid costly litigation ‘For many clients, mediation, while not suitable for all cases, can often provide a more satisfactory outcome than a trial in both financial and emotional terms.’The following phrase was recently uttered: ‘once we start irreparable damage may be done’. Not the words …

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Trusts: Section 57 clarified

Shân Warnock-Smith QC examines the partitioning of ‘Freeston’ trusts in the recent case of Southgate v Sutton ‘The US beneficiaries and the trustees were put in a difficult position as a result of the decision at first instance: the beneficiaries because of their continued exposure to penal US tax and the trustees because they could …

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Charitable Trusts: Law in action

Cuppage v Lawson is an example of how the Charitable Trusts (Validation) Act 1954 is working in practice, as William Henderson explains ‘The Act often now “does what it says on the tin” and validates trusts that would otherwise be void.’At a technical level this decision of HH Judge Hodge QC, sitting as a judge …

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Tax And Pensions: Golden opportunity?

Rhys Thomas discusses the pros and cons of QNUPS ‘Unlike a registered scheme, a QNUPS is not automatically subject to the lifetime and annual allowances, nor to restrictions on the “authorised payments” that can be made to beneficiaries.’Qualifying non-UK Pension Schemes (QNUPS) have attracted a lot of attention since being introduced by the Inheritance Tax …

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Undue Influence: Practical justice

The court’s approach in Smith v Cooper sheds light on presumed undue influence in the case of cohabitation, as Anna Clarke relays ‘In circumstances where an actual agreement between the parties is vitiated by undue influence and consequently avoided, it is not proper or possible to impute the same, or virtually the same, agreement to …

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Wills: Good Will Hunting

Sian Hodgson outlines a case that clarifies the standard of proof required to ‘prove’ a missing will ‘Given the nature of the claim, there was very little by way of documentary evidence and the court therefore had to take a view very much based on witness evidence.’It is generally accepted that, as a matter of …

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Book Review: Collective thinking

Joseph Jaconelli finds Constructive and Resulting Trusts an invaluable guide for practitioners This volume consists of 12 essays: six each on constructive and resulting trusts. Its origins are in a conference held in April 2009 at King’s College London. There already exist specialist treatments of the two types of trust in question: Oakley’s Constructive Trusts, …

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