Spouses, civil partners and cohabitants

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Precedents

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Notaries and notarisation—notarisation

The principles of the notarial act are that it is:•an act of the notary and not of the parties named in the document•a record of a fact, event or...

Creation of trusts—blind trusts

What is a blind trust?A blind trust is a trust that is aimed at preventing conflicts of interest arising. Usually, the settlor and beneficiary of the...

Nature and classification of trusts—the three certainties

CertaintyIn order for a settlor to create a private express trust the three certainties must be present, namely:•certainty as to the intention of the...

Lifetime gifts

A lifetime gift is a gratuitous transfer of ownership of any property between living persons and not made in expectation of death. In contrast, gifts...

Practice notes

The meaning of relevant property

The term 'relevant property' defines a category of trust property which is subject to a special regime for inheritance tax (IHT). As described in...

Produced in partnership with Paul Davies of Clarke Willmott 9th Nov

Practice notes

Capacity to litigate

On the face of it, there would appear to be no specific impediment, if there is no reason to suppose that a person is without capacity, in them...

9th Nov

Practice notes

Offshore trusts—offshore income gains (OIGs)

Offshore income gains (OIGs) are gains realised on the disposal of interests in offshore funds which are either:•non-distributor offshore funds, or...

9th Nov

Practice notes

Trust disputes—sham trusts

The issue of sham is most likely to be raised by the settlor's creditors or former spouse if the settlor is involved in matrimonial proceedings, who...

9th Nov

Practice notes

What is an offshore trust?

A trust is formed either by lifetime gift or on death when a person (the settlor) transfers assets to another person or persons (the trustees) to hold...

Produced in partnership with Mourant Ozannes and Carey Olsen 9th Nov

Practice notes

Bermuda trusts

This Practice Note outlines Bermuda trust law and focuses upon its unique features and recent reforms, such as Bermuda's regime for private trust...

Produced in partnership with Vanessa Lovell Schrum and Caljonah Smith of Appleby, Bermuda 9th Nov

Practice notes

Trust disputes—court jurisdiction and procedure

Trust litigation has been classified as being of three types:•a dispute as to the trusts on which trustees hold the subject matter of the settlement•a...

9th Nov

Practice notes

Trustees—power of advancement

Where a beneficiary either:•is a minor (ie under the age of 18) and unmarried or•has attained majority or has married under that date but is required...

9th Nov

Practice notes

Termination of trusts—methods of termination

Duration of a trustThe duration of an express trust is subject to the restrictions imposed by the rules against remoteness of vesting and against the...

9th Nov

Practice notes

Termination of trusts—beneficiaries

Duty to distribute to the correct beneficiariesOn the termination of the trust, the trustees are under a duty to distribute the trust assets to the...

9th Nov

Precedents

Deed of appointment terminating discretionary trust

This Deed of Appointment is made on [date] by [trustee] of [address] and [trustee] of [address] (the Trustees).Background(A)This Deed is supplemental...

9th Nov

Practice notes

Situs of assets for succession and IHT

When you advise an individual on cross-border issues or offshore tax planning, it is important to establish the 'situs' (ie location) of the assets...

9th Nov

Precedents

Partial deed of revocation of lasting power of attorney

This partial deed of revocation is made on [date] by [donor] of [address].1I granted a Lasting Power of Attorney for [Financial Decisions/Health and...

9th Nov

Practice notes

Liferent trusts—Scotland

Liferent trustsA liferent trust (or trust liferent) is a trust which, when settled, confers a use and income benefit, or both, in the trust property...

Produced in partnership with Peter Murrin of Turcan Connell 9th Nov

Scottish Law

Practice notes

UK taxation of offshore trusts—inheritance tax

An offshore trust is any non-UK resident trust. The liability of trustees of an offshore trust to UK inheritance tax (IHT) is not dependent on the...

Produced in partnership with Jenny Wilson-Smith and Emma Haley of Boodle Hatfield 9th Nov

Practice notes

Creation of trusts in Scotland

Express creation of trustsA trust is constituted expressly where the owner of property (the truster) transfers property to trustees to hold for...

Produced in partnership with Yvonne Evans, Law Lecturer, Solicitor (non-practising), TEP, University of Dundee 9th Nov

Scottish Law

Most recent Spouses, civil partners and cohabitants content

Practice notes

Taking a guarantee or third party security from an individual—undue influence

Guarantees (see Practice Note: Guarantees) and third party security (see Practice Note: Third party security) from individuals are relatively common...

25th Nov

Q&As

Where, under Will 1, Person A (independent adult) is a beneficiary of X% of the beneficial interest in a property forming part of the residue of the testator's estate and a cohabitation agreement between Person A and the testator has also been put in place to this effect, but, under Will 2, they have no interest, what claim(s) (if any) is open for Person A to make and against whom (including the personal representatives)?

It may be open to Person A to make a claim on the grounds set out below against the testator's estate (the estate) for X% of the beneficial interest...

Produced in partnership with Molly Hunter,b gh of Mishcon de Reya 24th Nov

Practice notes

Change of name of a child

Coronavirus (COVID-19): Guidance has been issued, including by the President of the Family Division, regarding all proceedings in the Family Court in...

19th Nov

Practice notes

Acquisition of parental responsibility by unmarried fathers

Who has parental responsibility?At birth•where the parents were married to each other, or from 2 December 2019 civil partners of each other at the...

17th Nov

Precedents

Declaration of trust

Date [insert date of deed in its full format DD-Month-Year]Parties1[insert full name of Trustee] [incorporated in England and Wales with company...

13th Nov

Q&As

An individual owns a property which they want to leave to the current tenant (who occupies under an Assured Shorthold Tenancy (AST)) on a life interest trust. How should the AST be terminated on the landlord's death (for example, by Will or by letter of wishes to the executors)? If the tenant pays rent under the AST to the trustees (to which the tenant is entitled as life tenant of the life interest trust), what effect does this have on the AST?

You have asked: An individual owns a property which they want to leave to the current tenant (who occupies under an Assured Shorthold Tenancy (AST))...

12th Nov

Practice notes

Case law relating to TOLATA 1996 claims

This Practice Note provides guidance on case law in relation to claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996),...

9th Nov

Practice notes

Tax implications of entering into a marriage or civil partnership

This Practice Note sets out the tax implications of marriage and civil partnership and the rules that apply in relation to income tax, capital gains...

Produced in partnership with David Salter, deputy High Court judge and Recorder 9th Nov

Practice notes

Tax implications of relationship breakdown

This Practice Note sets out the tax implications to be considered on relationship breakdown, ie separation, divorce or dissolution, including income...

Produced in partnership with David Salter, deputy High Court judge and Recorder 9th Nov

Practice notes

Trusts of land—practice and procedure

Part 7 or Part 8?Prior to April 2007, the practice direction to CPR 8 provided that where before 26 April 1999, a claim in the High Court was begun by...

9th Nov

Q&As

What is the procedure to ask the court to appoint a new trustee of land, and a vesting order in the new trustee?

For guidance on the appointment of trustees, see Practice Note: Trustees—appointment of trustees.See Practice Note: Trust disputes—trustees' removal...

6th Nov

Q&As

Following a divorce, do both parents (both holding parental responsibility) have a right to information regarding a trust of which their child is a minor beneficiary?

By section 3 of the Children Act 1989, 'parental responsibility' means all the rights, duties, powers, responsibilities and authority which by law a...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 4th Nov

Q&As

What problems might arise when a deceased spouse’s share in property which is subject to a mortgage passes to a life interest trust?

SeveranceThere would not be a problem with having severed the joint tenancy prior to the death of the deceased spouse. Severance can be effected in a...

Produced in partnership with Lynne Counsell of 9 Stone Buildings 29th Oct

Practice notes

Severance of a joint tenancy

Severance is the process by which a joint tenancy is converted into a tenancy in common. It is a matter of evidence whether severance has...

23rd Oct

Q&As

In their Will, X leaves land to their children and grandchildren, some of whom are minors, who are living at their death and attain the age of 21, if more than one in equal shares. Will X's personal representatives (PRs) be able to sell the land while some of the beneficiaries are under the age of 21? As the Will excludes section 11 of Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996), can X's PRs sell the property without consulting the beneficiaries or does TOLATA 1996, s 11 not apply to a specific legacy?

For the purpose of this Q&A, we have assumed that the Will was made on or after 1 January 1997.A minor cannot have a legal estate vested in them. The...

23rd Oct

Practice notes

Marital and civil partnership agreements—international aspects

This Practice Note is impacted by the exit of the UK from the EU on 31 January 2020. This has implications for practitioners, inter alia, when...

21st Oct

Q&As

A property is held as tenants in common. The first owner has died and the second lacks capacity. There is a life interest trust. The family have an enduring power of attorney (EPA) and want to add trustees to the title. Can this be done? If the family wish to sell do the trustees need further powers or leave of the court?

The legal ownership of jointly owned property in England and Wales (though not Scotland) is always held as joint tenants. This means that when one...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 6th Oct

Practice notes

Enforcement of orders made under TOLATA 1996

NOTE: This Practice Note is being reviewed in light of changes to Part 81 of the Civil Procedure Rules 1998 (CPR 1998) SI 1998/3132. With effect from...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 2nd Oct

Q&As

Is it possible to have an underlying declaration of trust for a joint tenancy of a property which alters the division of ownership between the joint owners from the usual 50:50 share?

In England, jointly owned property is held in two ways. The legal ownership of the property is held by those who have registered title (or, in respect...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 29th Sep

Q&As

Where the legal title of a property is held by two parties as joint tenants and the beneficial interest is held by the same two parties as tenants in common, what powers does one joint tenant have to sell the property where the other tenant is not co-operating? Can an application be made under section 14 of TOLATA?

Any person who is a trustee of land or has an interest in a property subject to a trust may make an application to the court under section 14 of the...

29th Sep