Trusts & Trustees

doi: 10.1093/tandt/ttab103pmid: N/A

Graham, Toby; AM QC, David Russell

doi: 10.1093/tandt/ttab102pmid: N/A

Goldstein, Claire; McKenzie, André

doi: 10.1093/tandt/ttab087pmid: N/A

The power to exclude beneficiaries is a little different from other powers given to trustees which must all be exercised in the best interests of the beneficiaries. In the case of exclusion, however, it will not in general, for obvious reasons, be in the interests of the person being excluded (except where there is a fiscal advantage to that person in the exclusion). Instead it may be exercised in the interests of the remaining beneficiaries, will be distinctly averse to the interests of the beneficiary being excluded and once the beneficiary has been excluded he can take no further interest under the settlement (although, of course, the precise scope of the exclusion will depend upon the terms of the power). The trustee is therefore under an obligation to properly consider the position of the person being excluded and as with all powers conveyed on a trustee, the power must be exercised carefully and not capriciously or in bad faith.

Niermann, Marcus; Muscheites, Erik

doi: 10.1093/tandt/ttab084pmid: N/A

The taxation of distributions from foreign foundations and trusts to beneficiaries resident in Germany is highly relevant in practice, but continues to be fraught with uncertainties. The article shows that recent case-law of the German Federal Fiscal Court (BFH) has clarified the position only partially. It is shown that economic double taxation burdens can only be avoided with careful planning which should ideally start before establishing German tax residency.

Johnson, Jeremy; Halligan, Jordan

doi: 10.1093/tandt/ttab074pmid: N/A

One constraint on the rule in Saunders v Vautier is that, where the trusts include discretionary trusts, the class of beneficiaries must be closed, so it is possible to determine who may legitimately benefit from, and thereby terminate, the trusts. At common law, it is unclear whether a power to appoint further beneficiaries may therefore frustrate the operation of the rule. This article examines the provisions of the Trusts Act 2019 (New Zealand) in the context of a recent decision of the courts in Guernsey, which suggests that the Act may have inadvertently altered the common law position.

Brown, Lloyd

doi: 10.1093/tandt/ttab081pmid: N/A

The purpose of this article is to evaluate the new “climate duties” that are created for pension trustees under the Pension Schemes Act 2021. An evaluation is provided of the Act’s section on “climate change risk.” The article suggests that while more could have been done to enforce climate change risk amongst pension trustees, the regulatory regime should nevertheless be seen as a positive development. Indeed, the new statutory requirements for the increased management and reporting of climate change risk should assist in making this important environmental issue be considered as a “financially material risk” throughout the sector.

Flannigan, Robert

doi: 10.1093/tandt/ttab080pmid: N/A

The law of fiduciary accountability has for some time been harried by the misinformed assertions and suppositions of various judges and writers. The numerous misconceptions increased the risk that the conventional understanding of the jurisdiction would collapse. That has now happened. The Supreme Court unconsciously (or consciously) rejected its own jurisprudence to reshape the conventional regulation into an extensive judicial power to assess the merits of the good faith actions of fiduciaries.

Pratt, Simon D

doi: 10.1093/tandt/ttab054pmid: N/A

The discussions in two preceding articles are now consolidated to help reformulate the Rule Against Perpetuities and to explain its search for a so-called measuring life in being. Here, it is argued that unsolved problems regarding the Effective Lives and Causal Connection hypotheses are overcome by applying Aristotelian and Avicennian ideas of necessary and proximate causation to Bractonian notions that valid conditions must be annexed to the limitation.

Kanachevsky, Vladimir

doi: 10.1093/tandt/ttab075pmid: N/A

This article outlines the regulatory landscape of the use of trusts by Russian residents and the implementation of the concept of beneficial ownership by the Russian legal system. The researcher describes an attempt to introduce trusts into the Russian legal system. The article also deals with trusts created by Russian residents abroad. In addition, the approaches of the Russian courts to the beneficial ownership concept, in the context of trusts and offshore companies are also discussed. The author analyses a number of cases which shed light on the issue of recognition of beneficiary owners’ rights in Russia.

Weaver, Elizabeth

doi: 10.1093/tandt/ttab085pmid: N/A

Where beneficiaries of a trust have a contingent or reversionary entitlement to capital, section 32 of the Trustee Act 1925 empowers trustees to accelerate their enjoyment of that interest by paying over part of their share to them, although only with the consent of beneficiaries with prior interests. Can that power be exercised where the trusts are in Hancock v Watson form, i.e. there is an apparently absolute gift to a beneficiary but trusts are then engrafted or imposed on the beneficiary’s interest giving them only a life interest? The article considers the judgment in Womble Bond Dickinson (Trust Corporation) Ltd v Glenn which is the first ever decision on this question.