REASONABLE FINANCIAL PROVISION CLAIM TRUMPS FINAL WILL EXCLUDING COHABITANT FROM THE ESTATE

The High Court of England and Wales has upheld a claim by a cohabitant of 42 years under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision, despite her being expressly written out of the deceased’s final will. We discuss the case (Thompson v Ragget & Ors [2018] EWHC 688) below.

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Filed under Estates disputes

Personal representative liable for inheritance tax on fully distributed estate

 

The First-tier Tax Tribunal (“FTT“) has provided a valuable reminder in the case of Harris v HMRC [2018] UKFTT 204 that, with limited exceptions, personal representatives are liable for inheritance tax arising on the deceased’s estate (Section 200 Inheritance Tax Act 1984). Continue reading

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Filed under Tax, Wills

Cayman Islands court considers legal test for mental capacity in exercise of a legal power

The Grand Court of the Cayman Islands recently confirmed In the Matter of the O Trust (23 February 2018) that the legal test for establishing mental capacity for the exercise of an impugned legal power, in this case a reserved power under a discretionary trust deed, is the same as for the making of a will. Continue reading

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Filed under Mental capacity, Offshore

UK authorities obtain first Unexplained Wealth Orders

In our recent blog post on the introduction in the UK of Unexplained Wealth Orders (“UWOs“), which can be found here, we explained how the new investigative tool could affect you and your business. In short, UK authorities may require the owner of property to provide details of how the property was acquired, where the authority has reasonable grounds to suspect that the owner would not have sufficient lawfully obtained assets to finance the purchase of the property.

Although UWOs were only introduced on 31 January 2018, the UK National Crime Agency (“NCA“) has already acted so as to secure two UWOs in connection with assets with a total value of £22m belonging to an unnamed “politically exposed person” from central Asia. In an accompanying press release, Donald Toon, the Director for Economic Crime at the NCA, stated that UWOs “have the potential to significantly reduce the appeal of the UK as a destination for illicit income” and that they will “enable the UK to more effectively target the problem of money laundering through prime real estate in London and elsewhere“.

It is clear that the UK authorities are prepared to use UWOs in appropriate cases. As set out before, HM Government has not yet provided guidance on best practice in responding to a UWO. However, as the UK authorities have now secured UWOs, there may now be more information regarding the obligations of a respondent in replying to a UWO, either as a result of judicial decision or official guidance.

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Filed under Injunctions

Supreme Court considers limitation defence where directors have benefited from breach of fiduciary duty

The UK Supreme Court has recently considered section 21(3) of the Limitation Act 1980 which provides or a six-year limitation period for actions by a beneficiary to recover trust property or in respect of any breach of trust (other than where the claim is based upon a fraud or fraudulent breach of trust, or where the claim is to recover trust property held by a trustee, for which there is no limitation period).

In Burnden Holdings (UK) Limited v Fielding and another [2018] UKSC 14, the Supreme Court held that directors of companies are to be treated as being in possession of the property of their company. This means that in actions brought by companies against their directors in relation to the company’s property, the directors will be unable to rely on the six year limitation period where they are in possession of the trust property or its proceeds or have converted the trust property. The Court also commented, in passing, in relation to the (very common) position where trustees hold assets through companies. Continue reading

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Filed under Fiduciaries, London, Trust disputes

Unexplained Wealth Orders: How might this new investigative tool affect you?

From 31 January 2018, UK authorities can use new and expansive investigative powers to require both individuals and corporate bodies to provide information as to how they acquired property. Known as Unexplained Wealth Orders (“UWOs”), these new obligations to disclose information can apply to property anywhere in the world and can be served on persons outside the UK. This briefing considers the legal framework behind UWOs, their interaction with other criminal and civil regimes, and the practical implications of UWOs on individuals, institutions and trustees.

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Filed under Injunctions, Private wealth and trusts, Uncategorized

Hong Kong: New licensing regime for trust and company service providers to come into force on 1 March 2018

The Companies Registry announced on 25 January 2018 that a new licensing regime for trust and company service providers (“TCSPs”) will come into force on 1 March 2018 under the Anti-Money Laundering and Counter-Terrorist Financing Ordinance (Cap. 615) (“AMLO”).

A new regime requiring companies to keep and maintain Significant Controllers Registers will also come into force on 1 March 2018, following the passing of the Companies (Amendment) Bill 2017 on 24 January 2018. Please see below for further details. Continue reading

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Filed under Hong Kong and Singapore

English Court considers grounds for out of time claims for financial provision from estates

In a recent decision, Sargeant v Sargeant [2018] EWHC 8 (Ch), the English High Court considered the circumstances in which the English Court will grant permission for out-of-time applications for financial provision from a deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act“). In the present case, considered further below, the Court held that it would be unlikely to grant permission where an applicant has been aware of the circumstances necessitating an application but has declined to apply to the Court or otherwise seek a variation of arrangements for an extended period of time.   Continue reading

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Filed under Estates disputes, Private wealth and trusts, Wills

Royal Court of Jersey applies Hastings-Bass provisions in relation to incorrect tax advice

We have previously reported on two provisions of the Trusts (Jersey) Law 1984, Articles 47H and 47G, which had been introduced following the UK Supreme Court’s judgment in Pitt v Holt [2013] UKSC 26 (see our previous post here).  That judgment overturned years of common law case law as to what had been thought to be the rule known as the rule in Re Hastings-Bass. In a recent judgment, In the matter of the L Trust [2017] JRC 191, the Jersey Royal Court applied Articles 47H and 47G to set aside an exercise of a power by a trustee who had relied on incorrect tax advice when deciding to act. This decision demonstrates the Jersey court’s continued willingness to act to protect beneficiaries where trustees have relied on incorrect advice when making decisions. Continue reading

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Filed under Offshore

The Australian Tax Office broadens its targeting of private groups

Having focused on the top 320 privately owned and wealthy groups (“Private Groups“) earlier this year, the Australian Tax Office (“ATO“) Tax Avoidance Taskforce team is about to take its next step and review the next 1,200 largest Private Groups. We set out further details below. Continue reading

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Filed under Australia, Tax