Delegates from across the world attended STEP’s Special Interest Spotlight Sessions in London, UK, on 9 December. Expert panellists discussed the latest issues affecting philanthropic giving, cross-border estates, international clients, business families, contentious trusts and estates, mental incapacity and digital assets.
This is the third in a series of blogs capturing the sessions and the expertise shared. It focuses on the discussion during the session presented by the Contentious Trusts and Estates Special Interest Group, Trusts and access to justice in light of family and operational diversity.
How the law works in different jurisdictions
US and Canada
Speakers considered how the law varies in different jurisdictions. In Canada and the US, the law includes scope for a trusted contact person, which financial institutions can ask clients to name if they want a secondary person to help with their finances.
This is a great help for people with capacity issues and can also protect professionals too. Delegates heard how, in Canada, for each case of reported financial abuse there are likely to be 44 cases that are unreported.
New Zealand law has a ‘presumption of disclosure’. Following the Panama Papers, domestic trust reporting obligations were introduced. Vicki Ammundsen TEP of Vicki Ammundsen Trust Law and 2022 Chair of STEP’s Contentious Trusts and Estates Special Interest Group described how more clients are wrapping up their trust structures because of the discomfort of sharing details of their health and personal details.
Oliver Passmore of Ogier referred to STEP’s Modern Family report, which looked at the complexities facing families. He talked delegates through several cases that have seen some of these complexities play out in the Jersey Royal Court.
He discussed the case of M v W Limited and Ors1, which looks at the interplay between trust law principles and the family’s cultural attitudes in the context of a Hindu joint family.
In a Hindu joint family, the ownership, production and consumption of wealth takes place on a joint basis. No one has special privileges and every member has equal obligations. The court had to consider the question of disclosure of documents and all the circumstances that applied. Because this was a Hindu joint family, the exercise of discretion applied.
An interesting aspect of this case is that the court gave the parties leave to seek expert evidence on these types of family structures and consider how the culture of a family interplays with the law.
Emma Holland of Stewarts Law highlighted statistics that show that cohabitation is increasing. In 2021, there were 3.6 million cohabiting couples in the UK, up from 1.5 million in 1996. At the same time, marriage rates are falling.
It is clear that this rise is set to continue. Despite this, cohabiting couples have very few rights. The panel considered whether if there is no legislation to help cohabiting couples in England and Wales, the courts have been left to tackle issues surrounding cohabitation and the division of assets.2
The session included a case round-up from James Poole of Ten Old Square, covering England and Wales. Simon Hurry of Collas Crill covered the Channel Islands and James Weale of Serle Court covered the Caribbean and the rest of the world.
Weale concluded the session with an overview of the long-awaited decision in Wong v Grand view & Ors, handed down the previous day.
He talked about how the Wong judgment, in his view, was disappointing as it does not give clear guidance on how to ascertain the purpose including of trusts more generally.
He stated that the judgment leaves several questions unanswered, including:
- Beyond a very clear case in which the trust is set up to benefit family members, how does one identify the purpose? And what (if anything) is the purpose of a broadly framed discretionary trust?
- What role do letters of wishes long-after the execution of a trust have?
- Void v voidable – Is Cloutte v Storey correct?
Weale highlighted the key conclusions from the case, referring to paragraphs 120-121 of the judgment:
‘In the Board’s view, it is generally the case that fiduciary powers conferred on a trustee of a trust with identified beneficiaries must be exercised to further the interests of the beneficiaries…
‘The task is to discern the intended purpose of the particular power of addition and exclusion in the context of the particular trust. This requires the approach of considering the power in the context of the trust instrument, and of the circumstances surrounding it…
‘In a case such as the present, where it appears to the Board that the GRT has a clear purpose, it has a decisive effect on identifying the purpose of the clause 8 powers…’
Kaitlyn Gutzke, Managing Editor, STEP Journal
2Issue 2 of the STEP Journal will delve into this issue in greater detail.