See Practice Note: Creation of trusts—discretionary trusts for information on the nature of a discretionary trust. Under a discretionary trust, the trustees are given a discretion to pay or apply income or capital or both, to or for the benefit of all or any one or more exclusively of the others, of a specified class or group of persons. Accordingly a discretionary beneficiary has no entitlement to benefit under the trust. Consider the terms of the trust document to see whether there are any provisions which can be used to remove the prospective beneficiary. A discretionary trust often includes a provision for the trustees

In this Q&A, we assume that the family members in question include the individuals applying for the grant of letters of administration. See Practice Note: Personal representatives—authority prior to grant of representation, which explains the authority of administrators prior to receipt of the grant of letters of administration. You will see from this note that the office of administrator derives entirely from the

Positive covenants The burden of a positive covenant will not run with the land in any circumstances; see Practice Note: Positive covenants—binding successors in title. Some conveyancing devices have been developed to overcome this problem. One is to enter a ‘chain of covenants’ whereby on each sale of the land an indemnity covenant is obtained in favour of the seller. The new covenant is directly enforceable by the seller against its successor and so can be relied on if the person with the benefit of the covenant (covenantee) seeks to enforce against the original maker of

We are not aware of any way to split a joint shareholding into separate shareholdings each held by an individual shareholder, without the consent of all the joint shareholders. A transfer of the shares from joint ownership to individual ownership is required to effect this, which would require each of the joint shareholders to agree, and enter into, the necessary transfer documentation, eg a stock transfer form. Where it is not possible to transfer jointly-held shares into the name of individual shareholders, it may still be possible to give a joint shareholder some distance from another joint shareholder in practice, even without their consent. It appears from the authorities that a joint shareholder may apply to the court to have the company’s register of members rectified under section 125 of the Companies Act 2006 (CA 2006). The register can be rectified by the court, if it sees fit, so that the single joint shareholding

In answering this Q&A we have assumed that the company in question is a private company limited by shares. Due diligence If paperwork relating to share allotments, transfers and alterations in share capital has not been completed or filed at Companies House, and the statutory registers have not been kept up to date, further due diligence will be required. The company in question and its directors or employees may also help to piece together what has happened. Here are a few questions that may assist in this due diligence exercise. See also the questions in section 3 of our precedent: Legal due diligence questionnaire—private M&A—share purchase: • is it possible that the company has kept electronic statutory registers? If so, ask for copies • ask the company to provide you with copies of share certificates, stock transfer forms and any other paperwork

See the following Precedent: Oath for administration to child or other

On the expiration of a disqualification order, there are no further steps set out in statute for a director to take before he can become a director again—the disqualification simply expires after the period of the order. Section 1(1) of the Company Directors Disqualification

There is nothing in the Civil Procedure Rules 1998 (CPR) that precludes a claimant from pursuing a claim in England and Wales simply because they leave the jurisdiction, so long as England and Wales is the correct jurisdiction for bringing the claim in the first instance. When dealing with

The Home Office Tiers 2 & 5 Sponsor Guidance states as follows: ‘26.32 If the migrant was granted leave under Tier 2 (General) as a “high earner” and the reduction in salary takes them below the high earner threshold, the migrant must make a new application for leave.’ It also states in relation to the exemptions to the Resident Labour Market Test (RLMT): ‘28.8 You do not have to carry out a test where the total salary package for the job will be £159,600 or above.

We understand that this must be disclosed at the time of assigning the Certificate of Sponsorship (CoS). As this Q&A acknowledges, the Tier 2 and 5: Guidance for Sponsors —Addendum guidance states that it is necessary to disclose the assignment of a CoS to a family member if the sponsor is a small or medium sized business: ‘…15.13 To make sure you are complying with our immigration laws, you must: disclose if you assign a CoS to a family member of

STOP PRESS: From 6 April 2017, the Insolvency Rules 1986, SI 1986/1925 were revoked and replaced by the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024. The content in this Q&A may have been affected by this change. In compulsory winding-up by the court, section 127 of the Insolvency Act 1986 (IA 1986) states: '[(1)] In a winding up by the court, any disposition of the company's property, and any transfer of shares, or alteration in the status of the company's members, made after the commencement of the winding up is, unless the court otherwise orders, void'. However,

Right to buy The right to buy (RTB) scheme gives eligible secure tenants the statutory right to buy their property at a discount. Subject to conditions a secure tenant has the right to buy the freehold of their house or the lease of their flat (or leasehold house). See Practice Note: Right to buy. The RTB applies to all secure tenancies, subject to exceptions (see below). Additionally, the government introduced a voluntary pilot extending the RTB to certain housing association tenants, in anticipation of the Housing and Planning Act 2016. Conditions The secure tenant must have been residing as a public sector tenant for at least three years (in England) or five years (Wales) (section 119 of the Housing Act 1985 (HA 1985)). A ‘public sector tenant’ is a tenant of a landlord meeting