In Clark v Cottingham [2018] NZHC 773, the New Zealand High Court considered an oral and without notice application for an interim order to prevent a cremation which was to be held in the afternoon on the same day of the hearing. The Court granted the order in terms, deciding that there was a serious issue to be tried and that far greater harm would result if the order was not made.
NEW ZEALAND COURT GRANTS INTERIM ORDER TO PREVENT CREMATION AFTER WEIGHING BALANCE OF CONVENIENCE
Filed under Uncategorized
HONG KONG COURT OF APPEAL REAFFIRMS NATURE OF BEDDOE APPLICATIONS
The Court of Appeal in Hong Kong has recently reaffirmed the nature of the Beddoe jurisdiction in Jong Yat Kit (as Sole Administrator of the Estate of Li Chung (Deceased) v Lee Man For and Ors (unrep, CACV 147/2017, [2018] HKCA 235). In adopting its previous decision in Re Mong Man Wai, Deceased [2013] 4 HKC 179, this case provides a reminder to defendant beneficiaries that the Beddoe jurisdiction is not a trial. Although a beneficiary defendant may be heard in such an application, the focus of the Beddoe court is the protection of the trust or estate’s interest such that a worthwhile claim should not be left unpursued for want of indemnity from the trust or estate against the trustee or personal representative’s potential exposure to costs. We consider the decision further below.
Filed under Hong Kong and Singapore, Trustee directions
Cayman court rejects request to appoint receivers over a discretionary trust interest
The Grand Court of the Cayman Islands has held that a discretionary interest under a Cayman Islands law trust is not an asset over which a receiver can be appointed for the purposes of enforcing an arbitral award (Y v R – Mangatal J, 9 January 2018). Continue reading
Filed under Trust disputes
ENGLISH HIGH COURT CONSIDERS THE USE OF THE COURT’S EQUITABLE JURISDICTION TO REMEDY DEFECTIVE EXECUTION
In the recent High Court decision of English v Keats [2018] EWHC 637 (Ch), the Court confirmed that it will use its equitable jurisdiction to remedy the defective execution of a deed of appointment. The case, in certain circumstances, has arguably also widened the meaning of ‘defective execution’, to include cases where one of the appointers failed to sign the deed. The case has cemented the modern application of this doctrine which dates back to at least 1728 and the case has also provided the potential for the scope of the “categories of people” condition to be reformed and widened in the future. Continue reading
Filed under Trust disputes
HSF Private wealth team boosted by three promotions
Herbert Smith Freehills’ highly regarded private wealth team has been boosted by the promotion of Joanna Caen and Gareth Keillor to Partner and Of Counsel respectively. HSF’s private wealth team specialises in trusts, estates, charities, family company and mental capacity issues. It frequently collaborates with other specialists across the firm including real estate, tax, funds and corporate. The team is further strengthened by the promotion to partner of Nick Clayton.
Joanna heads up the firm’s private wealth practice in Greater China and is based in the Hong Kong office. She travels frequently to Singapore and other destinations across Asia. She can call upon a multi-lingual team across the firm’s Asia network.
Gareth has been with the firm since 2003 and has a particular specialism in contentious work. He has worked on numerous matters involving Russia and former CIS states and a number of the leading offshore jurisdictions. Gareth is based in the London office.
Nick is also based in the London office and specialises in tax disputes and investigations and works frequently on issues involving ultra-high net worth individuals. He has particular experience of Switzerland-related issues.
If you would like to know more about HSF’s work in this area, please speak with Gareth, Joanna or Nick, alternatively Richard Norridge who heads up the team.
Filed under Uncategorized
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.
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
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
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.
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
Filed under Fiduciaries, London, Trust disputes
