Wealth and trusts quarterly digest

Welcome to our latest Wealth and Trusts digest. Our quarterly digest is specifically tailored for you and aims to provide up to date commentary, analysis and guidance on key sector developments. It is written by our wealth and trusts teams to assist you and your clients in responding to market trends and legal developments. We would welcome the opportunity to discuss any issues you may have and always welcome feedback on the content of our publications.

Feature

Trust beneficiaries do not have an automatic entitlement to access trust documents. However, trustees should carefully consider any request for documents they receive from beneficiaries and be aware of the beneficiary’s options if disclosure is not given. A recent case also provides a timely reminder that trustees (and their advisers) should be conscious of their obligations under data protection legislation, which is set to change when the General Data Protection Regulation comes into force on 25 May 2018.

News

Unexplained Wealth Orders

As part of the government’s anti-corruption strategy, the Criminal Finances Act 2017 has introduced, amongst other things, Unexplained Wealth Orders (UWOs). UWOs came into force on 31 January 2018. They are a new investigative power designed to compel respondents to provide specific information to law enforcement agencies. To recover questionable property, a UWO must be used alongside another power under the Proceeds of Crime Act 2002.

Beneficial ownership: government response to BEIS call for evidence on register of beneficial owners of overseas entities

On 22 March 2018, the Department for Business, Energy & Industrial Strategy (BEIS) published the government’s response to its call for evidence on proposals to establish a register of the beneficial owners of overseas companies and other legal entities that own UK property or engage in UK government procurement.

OECD issues model disclosure rules for CRS avoidance schemes

The Organisation for Economic Cooperation and Development (OECD) has published “model mandatory disclosure rules for CRS avoidance arrangements and opaque offshore structures”, which would require advisers and intermediaries to disclose information to the tax authorities about schemes designed to avoid Common Reporting Standard (CRS) reporting obligations or the identification of beneficial owners. This is a response to a request by G7 finance ministers to develop rules based on the approach in BEPS Action 12.

Case reports

The Public Trustee (as trustee of the Charles Willis Harrison 1924 Settlement) v Guy Charles David Harrison, Judy Tessa Rosemarie Mackay, Anne-Marie Helen Harrison-Mills

The High Court has determined how the terms of a settlement should be construed and how a deceased beneficiary’s disputed share of the settlement fund should be applied.

Payne & Anor v Payne

The Court of Appeal has overturned a decision of the High Court and has concluded that a will was validly executed according to the formalities set out in section 9, Wills Act 1837 (as substituted by the Administration of Justice Act 1982 in relation to wills taking effect after 1982) even though the two witnesses had not signed the will when attesting the testator’s signature. 

Burnden Holdings (UK) Limited v Fielding and another

The Supreme Court considered the proper construction of section 21(1)(b), Limitation Act 1980, in the context of a misfeasance claim against company directors and whether a trustee’s direct or indirect control of a company which receives trust property is suffcient to engage that section, even though it requires the trust property or its proceeds to be in the possession of the trustee, or previously received by the trustee and converted to his use. It also considered the meaning of “unlikely to be discovered for some time” in section 32(2), Limitation Act 1980.