{"title":"Managing and preventing cross-border disputes arising with the increasingly popular use of succession substitutes","authors":"J. Talpis","doi":"10.1093/tandt/ttad002","DOIUrl":"https://doi.org/10.1093/tandt/ttad002","url":null,"abstract":"\u0000 As the world becomes increasingly interconnected, many people are faced with increasing challenges in the planning and execution of wealth-transfer strategies upon death when they have property in different countries. At the same time, the rising popularity of succession substitutes or, as they are called in the common law world, will substitutes or non-probate devices that transfer property at death otherwise than by succession, is increasingly posing challenges for cross-border legal disputes, particularly in the absence of uniform choice of law rules relating to succession substitutes. In this article, Professor Jeffrey Talpis reviews the existing approaches for managing and preventing cross-border disputes involving, for example, the use by parties in civil law jurisdictions of common law non-probate devices, such as acquisitions in joint tenancy, pay-on-death or transfer-on-death accounts, and revocable inter vivos trusts. The author first defines and classifies succession substitutes used in domestic laws, then examines different approaches for managing cross-border disputes involving these devices in civil law and common law jurisdictions. While the author continues to promote the adoption of an international instrument to provide uniform solutions to resolve cross-border disputes arising from the use of succession substitutes, he proposes certain suggestions that, in the interim, could assist prevention of such conflicts of law.","PeriodicalId":171463,"journal":{"name":"Trusts & Trustees","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131890763","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Access to the memorandum of wishes by a beneficiary of a discretionary trust—an analysis of the law in New Zealand","authors":"Rebekah McCrae","doi":"10.1093/tandt/ttac107","DOIUrl":"https://doi.org/10.1093/tandt/ttac107","url":null,"abstract":"\u0000 This article considers whether the memorandum of wishes is trust information that should be disclosed to a beneficiary of a discretionary trust. The memorandum of wishes makes for interesting discussion as it is generally a non-binding document that can assist trustees when they exercise their discretionary power. To answer the question whether and when the memorandum of wishes should be made available to beneficiaries is not straightforward. The theory of why beneficiaries have the right to access trust information, case law that has unfolded on this issue, and the impacts of the Trust Act 2019 all play a role in making this assessment.","PeriodicalId":171463,"journal":{"name":"Trusts & Trustees","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116320520","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Priority of trustees’ indemnity inter se: pari passu or first in time priority?","authors":"T. Graham, David Russell","doi":"10.1093/tandt/ttac118","DOIUrl":"https://doi.org/10.1093/tandt/ttac118","url":null,"abstract":"","PeriodicalId":171463,"journal":{"name":"Trusts & Trustees","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127881229","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Navigating the complexities of section 100A: a look at the future of trust taxation in Australia","authors":"C. H. W. Mak","doi":"10.1093/tandt/ttad003","DOIUrl":"https://doi.org/10.1093/tandt/ttad003","url":null,"abstract":"\u0000 Section 100A of the Income Tax Assessment Act of 1936 is a provision designed to prevent arrangements in which a distribution is made to a beneficiary with a low tax rate, yet, the economic benefit is conveyed or paid to a second beneficiary with a higher tax rate. The Australian Taxation Office provided its final guidance on this provision very recently. This article provides an overview of the guidance, analyses cases regarding the application of Section 100A, and assesses the guidance’s potential future implications on trust taxation in Australia.","PeriodicalId":171463,"journal":{"name":"Trusts & Trustees","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134294987","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Swiss estates and (offshore) trusts: information gathering—recent Swiss case law","authors":"Tina Wüstemann","doi":"10.1093/tandt/ttac126","DOIUrl":"https://doi.org/10.1093/tandt/ttac126","url":null,"abstract":"\u0000 Trustees, foundations, banks, asset managers or tax advisors are often confronted with information requests from heirs of a Swiss estate. In this article, the author provides an overview of the heirs’ rights to information under Swiss contract law and Swiss succession law. She then focuses on a recent decision of the Swiss Federal Supreme Court (case 5A_30/2020), which addresses a claim for information by an executor against a financial institution in possession of trust information. The Swiss Supreme Court clarified in this decision on which basis an heir or an executor of a Swiss estate may lodge an information claim against a Swiss bank with regard to trust accounts or similar financial institutions holding financial information, of which the deceased was not the legal owner but only the beneficial owner.","PeriodicalId":171463,"journal":{"name":"Trusts & Trustees","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124231126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Protectors in the Bermuda courts","authors":"Keith Robinson","doi":"10.1093/tandt/ttac122","DOIUrl":"https://doi.org/10.1093/tandt/ttac122","url":null,"abstract":"\u0000 Whilst the word itself appears very infrequently in Bermuda statute, the role of the protector has long featured in Bermuda trust practice and is often of great importance. This article outlines the statutory references to the office of Protector in Bermuda and then looks at some recent Bermuda cases where protectors were in issue, including where the Court has exercised its inherent jurisdiction to appoint and remove protectors. These cases show that the Court is willing to quickly intervene in the best interests of the beneficiaries.","PeriodicalId":171463,"journal":{"name":"Trusts & Trustees","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129246448","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Whither Quistclose trusts? A non-linear development of the doctrine","authors":"A. Leung, Samuel Yee Ching Leung","doi":"10.1093/tandt/ttac120","DOIUrl":"https://doi.org/10.1093/tandt/ttac120","url":null,"abstract":"\u0000 The term “Quistclose trust” requires little introduction. Prickly Bay Waterside Ltd v British American Insurance Co Ltd [2022] UKPC 8 appears to be another Quistclose trust case adding to the wealth of authority on this subject—but is it? Apart from distilling the previous authorities, the Judicial Committee of the Privy Council seems to have set down other signposts to guide the courts. This article discusses the development of the Quistclose doctrine brought by this Privy Council decision. In particular, it will explore the purported refinement of the test of Quistclose trust, the relevant intention to be proven under the test, the issues in relation to fiduciary duty in this context, and also the way forward.","PeriodicalId":171463,"journal":{"name":"Trusts & Trustees","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133658553","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Fiat Testamenta (or Let There Be Wills): BVI Courts recognise foreign wills created by oral decree of Sharia Court","authors":"David Lim, Nicholas Brookes, Brian Lacy","doi":"10.1093/tandt/ttac104","DOIUrl":"https://doi.org/10.1093/tandt/ttac104","url":null,"abstract":"\u0000 This article considers the recent case of Al-Thani v Al Thani BVIHCMAP 2021/0001 (BVI HCV 2019/0001), in which the High Court of the Territory of the Virgin Islands (“BVI”) and the Eastern Caribbean Court of Appeal in the Territory of the Virgin Islands (the “Court of Appeal”) enforced the oral will of a Sharia Court of Qatar, which that foreign court decreed to have been made by a member of the Qatari royal family. In this article, the authors from Ogier, who acted for the successful party at first instance and on appeal, describe the issues arising from those proceedings.","PeriodicalId":171463,"journal":{"name":"Trusts & Trustees","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133403285","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The contraction of the definition of beneficiary in Jersey—is it real or imagined?","authors":"Katie Hooper, Paul B. Lewis","doi":"10.1093/tandt/ttac110","DOIUrl":"https://doi.org/10.1093/tandt/ttac110","url":null,"abstract":"\u0000 Two recent decisions of the Royal Court of Jersey have focused attention on the nature of a beneficiary’s interest under a discretionary trust in Jersey. In Kea Investments Limited v Watson,1 the Court considered whether the interests of a discretionary beneficiary could be distrained upon pursuant to Article 10(11) of the Trusts (Jersey) Law 1984. In Patel & Ors v JTC Trust Company Limited,2 the Master of the Royal Court considered the separate question of whether the Royal Court had the power to impound the interest of a discretionary beneficiary pursuant to Article 46 of the Trusts (Jersey) Law 1984. These decisions provoke thought as to how we must now consider the nature of a discretionary beneficiary’s interest under a Jersey trust. While being separate and distinct decisions, they arguably share a common thread as they demonstrate the Royal Court indirectly adopting a contextual and/or purposive approach when construing the definition of a ‘beneficiary’ in the Trusts (Jersey) Law 1984, in order to meet the justice of the case.","PeriodicalId":171463,"journal":{"name":"Trusts & Trustees","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129663440","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The assault on property","authors":"T. Graham, David Russell","doi":"10.1093/tandt/ttac108","DOIUrl":"https://doi.org/10.1093/tandt/ttac108","url":null,"abstract":"","PeriodicalId":171463,"journal":{"name":"Trusts & Trustees","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126168256","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}