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.
{"title":"Excluding beneficiaries: a decision not to be taken lightly","authors":"C. Goldstein, A. Mckenzie","doi":"10.1093/tandt/ttab087","DOIUrl":"https://doi.org/10.1093/tandt/ttab087","url":null,"abstract":"\u0000 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.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48133884","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}
It is a well-recognised principle that trustees, acting as fiduciaries, must exercise their discretionary powers for the benefit of the beneficiaries of the trust. A wrongful exercise of those powers will be a breach and may be set aside by a court. In most cases, the question of whether the exercise of the discretion is of “benefit” to the beneficiary is obvious. However, there are occasions where it is not so, particularly where the “benefit” to the beneficiary is not direct or is not fiscal in nature. In these cases, trustees must tread carefully. The Royal Court's recent decision in In the matter of the May Trust [2021] JRC137 provides important clarification on what constitutes a “benefit” and is essential guidance for trustees in this often misunderstood area.
{"title":"When does a beneficiary benefit?","authors":"Stephen Alexander","doi":"10.1093/tandt/ttab086","DOIUrl":"https://doi.org/10.1093/tandt/ttab086","url":null,"abstract":"\u0000 It is a well-recognised principle that trustees, acting as fiduciaries, must exercise their discretionary powers for the benefit of the beneficiaries of the trust. A wrongful exercise of those powers will be a breach and may be set aside by a court. In most cases, the question of whether the exercise of the discretion is of “benefit” to the beneficiary is obvious. However, there are occasions where it is not so, particularly where the “benefit” to the beneficiary is not direct or is not fiscal in nature. In these cases, trustees must tread carefully. The Royal Court's recent decision in In the matter of the May Trust [2021] JRC137 provides important clarification on what constitutes a “benefit” and is essential guidance for trustees in this often misunderstood area.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45085799","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}
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.
{"title":"Distributions from Foreign Foundations and Trusts—The Case-law of the German Federal Fiscal Court (BFH)","authors":"Marcus Niermann, Erik Muscheites","doi":"10.1093/tandt/ttab084","DOIUrl":"https://doi.org/10.1093/tandt/ttab084","url":null,"abstract":"\u0000 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.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49346158","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}
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.
{"title":"Fiduciary accountability shattered","authors":"Robert Flannigan","doi":"10.1093/tandt/ttab080","DOIUrl":"https://doi.org/10.1093/tandt/ttab080","url":null,"abstract":"\u0000 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.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49155485","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":"Fiduciary principle in public life: the duty of balance—some lessons from the past","authors":"T. Graham, David Russell","doi":"10.1093/tandt/ttab097","DOIUrl":"https://doi.org/10.1093/tandt/ttab097","url":null,"abstract":"","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44830389","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}
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.
如果信托的受益人对资本有或有或复归的权利，1925年《受托人法》第32条授权受托人通过向其支付部分股份来加速其对该权益的享有，尽管只有在获得先前权益的受益人同意的情况下。如果信托是Hancock诉Watson案的形式，即对受益人有明显的绝对赠与，但信托随后被植入或强加给受益人的利益，只给他们终身利益，那么这种权力可以行使吗？本文考虑了Womble Bond Dickinson（Trust Corporation）Ltd诉Glenn一案的判决，这是有史以来第一个关于这个问题的判决。
{"title":"Expanding the ambit of Section 32 of the Trustee Act 1925? Womble Bond Dickinson (Trust Corporation) Limited v Glenn & Others [2021] EWHC 624; [2021] WTLR 737","authors":"Elizabeth Weaver","doi":"10.1093/tandt/ttab085","DOIUrl":"https://doi.org/10.1093/tandt/ttab085","url":null,"abstract":"\u0000 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.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49445821","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}
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 materially risk” throughout the sector.
{"title":"The Pension Schemes Act 2021: new duties for trustees and managers of pension fund trusts","authors":"L. Brown","doi":"10.1093/tandt/ttab081","DOIUrl":"https://doi.org/10.1093/tandt/ttab081","url":null,"abstract":"\u0000 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 materially risk” throughout the sector.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44379290","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}
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.
{"title":"A closed class? Powers to appoint further beneficiaries as a constraint on the rule in Saunders v Vautier","authors":"Jeremy R. Johnson, J. Halligan","doi":"10.1093/tandt/ttab074","DOIUrl":"https://doi.org/10.1093/tandt/ttab074","url":null,"abstract":"\u0000 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.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48097260","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 tale of two representatives and two jurisdictions","authors":"Zahler Bryan","doi":"10.1093/TANDT/TTAB020","DOIUrl":"https://doi.org/10.1093/TANDT/TTAB020","url":null,"abstract":"","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":"27 1","pages":"338-343"},"PeriodicalIF":0.3,"publicationDate":"2021-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46875631","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}
A recent judgment of the Court of Appeal of England and Wales1 provides a timely warning to trustees that characterising a payment to beneficiaries as a loan does not conclusively make it so, and that mischaracterising such transactions could place trustees in peril.
英格兰和威尔士上诉法院(Court of Appeal of England and wales)最近的一项判决及时警告受托人，将支付给受益人的款项定性为贷款并不能最终使其成为贷款，而且错误地定性此类交易可能使受托人处于危险之中。
{"title":"Substance over form—when a loan is really a distribution","authors":"Jeremy Bell-Connell, Henry Brandts-Giesen","doi":"10.1093/tandt/ttab042","DOIUrl":"https://doi.org/10.1093/tandt/ttab042","url":null,"abstract":"\u0000 A recent judgment of the Court of Appeal of England and Wales1 provides a timely warning to trustees that characterising a payment to beneficiaries as a loan does not conclusively make it so, and that mischaracterising such transactions could place trustees in peril.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":"1 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"62036528","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}
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