Controversial will? Advise your clients on ‘statements of reason’

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Earlier this spring STEP hosted the Tax, Trusts & Estates Conference at a number of venues around the UK. Speakers included Stephen Lawson TEP, Chris Whitehouse TEP, Caroline Bielanska TEP, Steven Kempster TEP, Professor Lesley King TEP, and Lucy Obrey TEP.

Stephen Lawson provided a much needed update on the Inheritance (Provision for Family and Dependants) Act 1975, which has already been amended several times.

Under this Act, a will can be contested if the deceased failed to provide reasonable financial provision for someone who is eligible to bring a claim. If successful, the other beneficiaries will receive less than they were originally bequeathed.

Stephen drew our attention to that fact that these claims could sometimes be avoided with a well-written will and an ancillary ‘statement of reasons’ to support its content. This is particularly prudent where the testator is excluding estranged family members from the will. A statement of reasons that has been carefully drafted by the practitioner, and signed by the testator, will have gravitas and will be considered by a judge when deciding whether to award provision.

Inheritance Act litigation is becoming increasingly common due to people’s demanding financial needs, and claimants will often pursue their claim with a ‘no win no fee’ agreement, so they are not financially encumbered. Regrettably, this type of litigation can potentially delay the administration of an estate by up to three years, which seems unfair to the bone fide beneficiaries.

It is therefore essential that practitioners flag the importance of the Act’s ramifications to testators, and discuss who might be entitled to a claim, so that an informed discussion and statement can be prepared to prevent any unwanted litigation.

Stephen provided a summary of some pertinent cases, such as Ilott v Mitson (2015) EWCA Civ 797. In Ilott the statement of reasons was not determinative. With the benefit of hindsight it could be seen that the statement of reasons that had been prepared was based on negative reasons as to why the claimant should be excluded – it did not emphasise positive reasons as to why the other beneficiaries should have received her bounty – as an illustration, if the testatrix had been a lifelong supporter of animal charities this reason could have carried more weight.

In this case, the court could not establish who was at fault for the estrangement. Stephen stressed the importance of providing a concise and objective statement when a potential claimant is being excluded from the will, in case it is challenged later.

Although a well drafted statement cannot be determinative, a court will take it into account when deciding whether a potential claimant has a valid claim.

Emily Deane TEP is Technical Counsel at STEP

The UK PSC Register: what you need to know

question and answerTransparency has been in the forefront of many people’s minds since news broke of the leak from Mossack Fonseca in Panama.

But those in the know will be aware that the UK government has already taken steps to tackle the issue with the creation of a public register of company beneficial ownership: the PSC (People with Significant Control) Register.

To help members and others we have put together a brief Q&A on the PSC Register, to serve as a quick guide. We have also included a few links to more detailed information at the end.

What is the PSC Register, and why has it been established?

The PSC Register is a statutory public register of companies’ beneficial ownership to be kept at Companies House in London, predominantly to register people with significant control. It will become publicly available via a company search from June 2016.

The idea is to establish greater disclosure and transparency as a means of combatting tax evasion, organised crime and money laundering. It is expected to affect about 2.5 million UK companies and partnerships.

How is ‘People with Significant Control’ defined?

A beneficial owner is an individual who owns or controls over 25% of a UK company either through direct or indirect shareholdings, or who otherwise exercises control or influence over a company or management. This type of control includes, but is not limited to, the ability to appoint and/or remove directors. Beneficial owners must disclose these interests, whether they reside in the UK or elsewhere.

What needs to be disclosed?

The disclosure requirements include the full name, company and residential address, date of birth, nationality, country or state of usual residence of the beneficial owner, including the date of acquiring the beneficial interest, and how it is held. The date of birth and address will not be shown on the public register for privacy reasons. There is a regime for suppressing all information relating to the PSC; however this will only apply in exceptional circumstances, where there is an imminent threat of harassment or intimidation.

What about trusts?

Individuals who control the activities of a trust will need to be recorded as the beneficial owners of that company, where 25% of a company’s shares or voting rights are held in a trust, or where a trust arrangement provides an individual or individuals with control over the company or its management. This will usually require the trust to register the names of the settlor, beneficiary or protector, even though few beneficiaries would exercise any control over the trust. A protector may be registered depending on the amount of control they exercise and if they have the ability to appoint and remove trustees they would be considered to have significant control.

Who does the legislation apply to?

The legislation applies to all UK incorporated companies, including limited liability partnerships, as well as individuals who hold a UK company, through an overseas holding company will also be obliged to register unless they hold a minority interest, in which case they will be exempted.

What about charities?

Charities and social enterprises structured as companies will also be affected, but most will not have PSCs and will simply need to make a note to that effect in the register.

What happens if the information is out of date?

Companies must stay on top of any changes to the registered information that they would be reasonably expected to know and there will be criminal sanctions for anyone who fails to comply which is punishable by fine and/or imprisonment.

Are there any areas of concern to be aware of?

Family businesses will of course be concerned about the impact on their company and its confidentiality since the extent of the business interests and wealth will become public.

An additional concern to businesses is that the register may make UK companies a less attractive investment for investors.

There have also been reports recently highlighting farmers’ inclusion within the PSC requirements. Farming and rural businesses will need to consider how their business is run and who actually owns it– family members with small shareholdings may well qualify as a PSC if they exercise influence over other shareholders and how they vote.

What about the rest of the world?

The international agenda is moving extremely fast in relation to beneficial ownership transparency, with new developments almost every day. George Hodgson covered some of these developments in a previous post – which looked at recent moves towards automatic exchange of beneficial ownership information. With regard to public access, however, the UK is leading the way, and has been calling for other countries to follow suit. The EU’s fourth money laundering directive will soon be introducing corporate registers that will be publicly available to those with a ‘legitimate interest’ in the hope that corporate transparency will also mitigate and deter criminal activity. This comes into effect on 26 June 2016.

Australia has also announced that it would also be establishing public registers, and France plans to make public the register of beneficial ownership of trusts it set up in 2013 (more information).

Last week the Netherlands, Nigeria and Afghanistan promised to launch their own public registers of company ownership, with New Zealand, Jordan, Indonesia, Ireland and Georgia taking initial steps in the same direction.

To date some 40 jurisdictions have signed up to automatically share their beneficial ownership registers, and it seems likely that many more will follow as international pressure builds.

More information on the PSC Register

 

Emily Deane TEP is Technical Counsel at STEP

STEP attends European Parliament meeting on vulnerable adults across Member States

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STEP members Richard Frimston TEP and Anneke Vrenegoor TEP attended the European Parliament (EP) on 20 April to hear expert presentations on vulnerable adults across Member States (MS) by Dr Ian Curry Summer and Pietro Franzina (see presentations below).

The occasion followed continued debate in the EP regarding the difficulty that MS are encountering to ensure the protection of their senior citizens.

Each state has its own legal system in place in order to safeguard its senior citizens, however, with an increasing number of people on the move, the applicable law and jurisdiction is becoming more complex.

MEP Joëlle Bergeron, Robert Bray, Isabelle Bardy, Francisco Ruiz (JURI secretariat) and the two experts were in attendance, and STEP member Dr Fiona Murray described the presentations as ‘clear and aligned’. MEP Bergeron broadly concurred with the findings of the experts and reiterated the need for EU legislation for an EU certificate for recognition and protection of vulnerable adults.

STEP is monitoring the issue of EU legislation across MS.

Richard Frimston TEP and Kathleen Cunningham TEP will also be presenting a session on vulnerable adults, and the global legal approaches being adopted, at the STEP Global Congress in Amsterdam on 30 June – 1 July.

 

Emily Deane TEP is Technical Counsel at STEP