Creation of trusts

Perpetuities and accumulations

The rules relating to perpetuities and accumulations stem from the provisions in the Perpetuities and Accumulations Act 1964 and from common law. These increasingly archaic rules were becoming troublesome and as long ago as 1989, the Law Commission started consultations on altering them. This culminated in a paper in 1993 identifying defects in the system and a final report in 1998 with a draft bill. This resulted in the Perpetuities and Accumulations Act 2009 (PAA 2009) which gives effect to that report.

PAA 2009 became operable on 6 April 2010. It seeks to modify and simplify the law by making changes both to the rule against perpetuities (also known as the rule against remoteness of vesting) and the rule against excessive accumulations. Practitioners will still have regard to the old rules that continue to apply in certain cases.

See Practice Note: Perpetuities and accumulations.

Creation of trusts—parties, recitals and testatum

Usually the date on which the settlement was made is set out at the beginning of the trust instrument. The date may be important for subsequent time limits and the

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All in? Court confirms when a settlement is 'made' for the purposes of excluded property (Accuro Trust (Switzerland) SA v The Commissioners for HMRC)

Private Client analysis: This case considered the meaning of 'relevant property' under the settlements regime of the Inheritance Tax Act 1984 (IHTA 1984) and, in particular, the time at which this definition is to be tested. The question arose as to whether the trustees of an offshore trust established by a non-UK domiciled settlor were subject to the UK settlements regime in respect of property added to the trust after the settlor became deemed domiciled in the UK, or whether they were exempt from such charges as the trust consisted solely of excluded property. The First-tier Tribunal (FTT) held that whether trust property is excluded property is based on the status of the trust at the time that it was established, not at the time that the property in question was added to the settlement. As a result, the trust in this case did consist solely of excluded property and no inheritance tax (IHT) charges arose as a result of either the ten-year anniversary or capital distributions. The FTT was also asked to consider whether their jurisdiction was appellate, or supervisory only. The FTT held that, while their jurisdiction was supervisory, the questions raised by the trustees were relevant in establishing whether HMRC had acted reasonably and that the outcome (ie that the paid IHT should be refunded and that no further IHT was due) would be the same in either case. Written by Katherine Willmott, senior associate solicitor at Foot Anstey LLP.

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