Private Client:

King

Sujets

• Droit et juridique
• Succession

Informations

• Publié par: College of Law Publishing
• Date de parution: 01 janvier 0001
• Nombre de lectures: 2
• EAN13: 9781913226442
• Langue: English

Extrait

PRIVATE CLIENT: WILLS, TRUSTS AND ESTATE PLANNING

Published by
College of Law Publishing,
Braboeuf Manor, Portsmouth Road, St Catherines, Guildford GU3 1HA
© The University of Law 2020
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by any means, including photocopying or recording, without the written permission of the copyright holder, application for which should be addressed to the publisher.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
ISBN 978 1 913226 32 9 EISBN 978 1 913226 44 2
Typeset by Style Photosetting Ltd, Mayfield, East Sussex
Tables and index by Moira Greenhalgh, Arnside, Cumbria
Preface
The aim of this book is to provide a comprehensive introduction to the legal and taxation implications arising from estate planning work for clients within the private client department of a solicitor’s practice. At the beginning of Chapter 1 , there is reference to the problem of definition of private client. In view of this it has been necessary, but difficult, to define the scope of the text, although the subtitle to this book has helped to a considerable extent.
We have had the benefit of helpful, and often long, discussions with many practitioners, from whose suggestions we hope to have arrived at a consensus. However, we remain aware that the private client department of a London firm is often very different from a provincial practice. We should like to express our appreciation to the many busy private client partners who have so willingly provided their advice and suggestions, and their time, in relation to the content of this book.
This book is written primarily to complement the Legal Practice Course elective, Private Client, but it is hoped it will provide a useful introduction to others interested in this type of work. Students studying for this elective will have already completed the compulsory part of the Legal Practice Course; there are, therefore, some references to that course and to other LPC Guides.
Until 2016/17, this book was co-authored with Helen Cousal, who put in an enormous amount of work. Much of the text remains hers and we owe her an enormous debt.
For brevity, we have used the masculine pronoun throughout to include the feminine. The law is stated as at 30 September 2019.
Throughout, we have endeavoured to provide the principal statutory references to enable further research to be made into a topic where this is required. In a subject as broad-based as Private Client (even as interpreted within this book), there are many relevant textbooks and precedent books to which a student or practitioner may wish to refer; these include:
Lasting and Enduring Powers of Attorney
Cretney & Lush on Lasting and Enduring Powers of Attorney , 8th edn (Jordans Publishing, 2017)
Trust Law
Parker and Mellows, The Modern Law of Trusts , 9th edn (Sweet & Maxwell, 2015)
Hanbury and Martin, Modern Equity , 21st edn (Sweet & Maxwell, 2018)
Precedents
Practical Will Precedents (Sweet & Maxwell)
Practical Trust Precedents (Sweet & Maxwell)
Encyclopaedia of Forms and Precedents (LexisNexis Butterworths), Trusts and Settlements
Estate and Tax Planning
Estate Planning (Tolley)
Tax Planning (Tolley)
Taxation of UK Trusts (Tolley)
Wills and Probate
Barlow, King and King, Wills, Administration and Taxation Law and Practice , 12th edn (Sweet & Maxwell, 2017) Williams on Wills , 10th edn (LexisNexis Butterworths, 2014)
Revenue Law
Revenue Law: Principles and Practice , 36th edn (Bloomsbury Professional, 2018)
LESLEY KING
The University of Law
Contents
PREFACE
TABLE OF CASES
TABLE OF STATUTES
TABLE OF STATUTORY INSTRUMENTS AND PRACTICE RULES
TABLE OF ABBREVIATIONS
Chapter 1 PRIVATE CLIENT – AN INTRODUCTION
1.1 What is private client work?
1.2 Private client work and the compulsory subjects of the Legal Practice Course
1.3 Ownership and disposition of assets
Summary
Chapter 2 FINANCIAL PLANNING
2.1 A lawyer’s role in financial planning
2.2 The Financial Services and Markets Act 2000
2.3 Developing the investment strategy for clients
2.4 Portfolio planning
2.5 Introduction to types of investment products
Summary
Review activity
Chapter 3 ENDURING POWERS OF ATTORNEY, LASTING POWERS OF ATTORNEY AND LIVING WILLS
3.1 Introduction
3.2 Enduring powers of attorney
3.3 Effect of the Mental Capacity Act 2005
3.4 Lasting powers of attorney
3.5 Living wills and advance decisions to refuse treatment
Review activity
Summary
Chapter 4 ESTATE PLANNING
4.1 Introduction
4.2 Tax and estate planning
4.3 Inheritance tax
4.4 Capital gains tax
4.5 Transfers between spouses and civil partners
4.6 Transfers from parents to children and remoter issue
4.7 The family home
4.8 Gifts to charity
4.9 Stamp duty and stamp duty land tax
4.10 Conclusion
Summary
Review activity
Chapter 5 INTRODUCTION TO SETTLEMENTS
5.1 Introduction
5.2 Inheritance tax and settlements
5.3 Capital gains tax and lifetime settlements
5.4 Income tax and settlements
5.5 Anti-avoidance provisions
5.6 Choice of settlement
Summary
Review activity
Chapter 6 LIFETIME SETTLEMENTS: SOME COMMON DRAFTING POINTS
6.1 Introduction
6.2 The date and opening words
6.3 Parties
6.4 Recitals
6.5 Table of contents, clause headings, definitions and Schedules
6.6 Identifying the beneficiaries
6.7 The trust fund
6.8 Trust or trust for sale?
6.9 Perpetuity period
6.10 Accumulations
6.11 Trusts of the beneficial interests
6.12 Trustees’ discretions in relation to beneficial interests
6.13 Appointment of new trustees
6.14 Excluding the effect of TLATA 1996, ss 11, 12 and 19
6.15 Exclusion of settlor (and spouse/civil partner)
6.16 Stamp duty and stamp duty land tax
6.17 Signatures
Summary
Review activity
Chapter 7 DRAFTING BENEFICIAL INTERESTS
7.1 Introduction
7.2 Settlements creating discretionary trusts
7.3 Settlements with contingent interests
Summary
Review activity
Chapter 8 ACCUMULATION AND MAINTENANCE SETTLEMENTS
8.1 Introduction
8.2 What are A & M settlements?
8.3 Taxation of existing A & M settlements from 6 April 2008
Summary
Review activity
Chapter 9 TRUST ADVANCES AND APPOINTMENTS
9.1 Introduction
9.2 What are advances and appointments?
9.3 Similarities and differences
9.4 The statutory power of advancement
9.5 Drafting powers of appointment
9.6 Taxation aspects of the exercise of powers of advancement and appointment
Summary
Review activity
Chapter 10 THE EXERCISE OF POWERS OF ADVANCEMENT AND APPOINTMENT
10.1 Introduction
10.2 Exercising powers in relation to interest in possession settlements created before 22 March 2006 or on death
10.3 Exercising powers in relation to relevant property settlements
10.4 Exercising powers in relation to trusts for bereaved minors and bereaved young people
10.5 Exercising powers in relation to accumulation and maintenance settlements
10.6 Exercising powers in relation to resettlements
Review activity
Chapter 11 BASIC WILL DRAFTING
11.1 Preliminary matters
11.2 Basic content of a will
11.3 Partially exempt transfers
Summary
Review activity
Chapter 12 WILL TRUSTS
12.1 Introduction
12.2 Why include trusts in a will?
12.3 Special IHT treatment for certain settlements created on death
12.4 Precatory trusts
12.5 Wills containing flexible trusts
12.6 Drafting discretionary trusts of residue
12.7 Wills containing a terminable life interest
12.8 Possible Inheritance Act claim by surviving spouse/civil partner
12.9 IHT treatment of settlements created on death on or after 22 March 2006
Review activity
Summary
Chapter 13 POST-DEATH ARRANGEMENTS
13.1 Introduction
13.2 Types of arrangement
13.3 Post-death variations
13.4 The scope of the statutory provisions for variations and disclaimers
13.5 Income tax, tax avoidance and post-death arrangements
13.6 Drafting a post-death variation and the statement of intent
Summary
Review activity
Chapter 14 TRUST ADMINISTRATION
14.1 Introduction
14.2 Management powers of trustees
14.3 Trustee investments
14.4 Appointment of trustees
14.5 Taxation during the administration of a settlement
14.6 Distributing the trust funds
Summary
Review activity
Chapter 15 THE OVERSEAS DIMENSION
15.1 Introduction
15.2 Residence and domicile
15.3 Taxation of the individual and the foreign element
15.4 Trustees and the foreign element
Summary
Review activity
APPENDICES
Appendix 1 Income Tax Rates and Allowances
Appendix 2 Investment and Financial Products
Appendix 3 Discretionary Settlement
Appendix 4 Settlement for Bereaved Young Persons
Appendix 5 Will – Outline Structure
Appendix 6 Trust Distribution Account
INDEX
Table of Cases
A A v B [2016] EWHC 340 (Ch) 129 Allfrey v Allfrey [2015] EWHC 1717 (Ch) 129 Allhusen v Whittell (1867) LR 4 Eq 295 213
B B (Consent to Treatment: Capacity), Re [2002] EWHC 429 (Fam), [2002] 1 FLR 1090 33 Bailey v HMRC [2017] UKFTT 0658 (TC) 81 Batey (Inspector of Taxes) v Wakefield [1982] 1 All ER 61 80 Beaney, Re (Deceased) [1978] 1 WLR 770 40 Bennett v Inland Revenue Commissioners [1995] STC 54 47 Berger v Berger [2013] EWCA Civ 1395 245 Best v HMRC [2014] UKFTT 077 (TC) 51 Bond (Inspector of Taxes) v Pickford [1983] STC 517 184 , 185 Brander v Revenue and Customs Commissioners [2009] SFTD 374, aff’d [2010] STC 2666 51 Breeds’ Will, Re (1875) 1 Ch D 226 152 Buckley, Re [2013] EWHC 2965 (COP) 29
C Clore’s Settlement Trusts, Re [1966] 1 WLR 955 157 Cowan v Foreman [2019] EWCA Civ 1336 245
D Daniel v Tee [2016] EWHC 1538 (Ch) 271 Dutton-Forshaw v RCC [2015] UKFTT 478 (TC) 81
E Earl of Chesterfield’s Trusts, Re (1883) 23 Ch D 643 213 Edward, Duke of Somerset v Fitzgerald [2019] EWHC 726 (Ch) 129
F Furniss (Inspector of