In the two cases set out below, the New Zealand Court of Appeal considered the circumstances in which there may be rectification of a deed entered into as part of a voluntary settlement and considered where reliance on one legal argument in order to get another issue before the court may amount to an abuse of process. These cases are of general application to other jurisdictions, therefore should be borne in mind when dealing with similar issues. Continue reading
NEW ZEALAND COURT OF APPEAL PROVIDES GUIDANCE FOR THE TEST OF RECTIFICATION OF A VOLUNTARY SETTLEMENT AND FINDS THE USE OF THE “BACKDOOR” METHOD TO BE AN ABUSE OF PROCESS
The High Court of Australia has restored sanity in a long running saga in which a trustee purported to separate franking credits from the underlying dividends in allocations to beneficiaries. The Court held (as the parties now accepted) that this was not possible and that a contrary decision of the Supreme Court of Queensland in its trusts jurisdiction to which the Commissioner of Taxation was not party did not bind the Commissioner. To find out more, please read below.
In the recent case of Lewis v Tamplin ( EWHC 777 Ch) the London High Court was asked to exercise its jurisdiction to supervise trustees in the performance of their obligations by requiring trustees to give disclosure of documents requested by certain beneficiaries. The case also serves as a reminder of the rules regarding privilege between trustees and beneficiaries. We consider this case further below. Continue reading
Herbert Smith Freehills LLP is pleased to announce that we are holding a Private Wealth Seminar at lunchtime on 10 July 2018 in Jersey.
The seminar will be considering the current and future focus of HMRC in connection with estate planning and key issues arising when tax and other professional advice goes wrong.
Topics covered will include:
- Penalties for advisers who enable avoidance and possible defences.
- Proposed simplification of inheritance tax and taxation of trusts.
- Changes to the taxation of non-UK residents holding UK real estate.
- UK tax implications of becoming deemed domicile under the recently amended UK rules.
- Potential claims by trustees against professional advisers in relation to UK tax advice and the structuring of assets.
- Considerations for trustees when bringing professional negligence claims.
If you are interested in attending, please click here for sign-up details.
In Clark v Cottingham  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.
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,  HKCA 235). In adopting its previous decision in Re Mong Man Wai, Deceased  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.
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