GDPR Roundtable

Emily Deane TEPSTEP’s GDPR working group recently hosted a roundtable event that enabled representatives from professional bodies, including the Law Society, ICAEW and CIOT, to update each other on their progress in relation to GDPR implementation. It is widely felt by the private client industry that when the legislation was drafted it was not designed with trust and estate practitioners in mind and there are some significant grey areas in practice.

Key issues that continue to be an industry concern discussed were:

  • How the GDPR applies to lay trustees and personal representatives.
  • How non-legal advisors process special category data.
  • How the GDPR impacts upon international transfers.
  • Queries in relation to joint data controllers and confidentiality.
  • GDPR and its impact upon engagement letters.
  • GDPR and its impact upon attorneys and deputies.
  • Erasure of files and filing system requirements.

STEP’s working group is in the process of preparing a joint paper that it will submit to the Information Commissioner’s Office (ICO) identifying the practical issues that have arisen for trust and estate practitioners. We hope that the ICO will be able to address some of the gaps in the guidance and legislation.

STEP has scheduled another roundtable in February 2019 to further discuss these issues and aims, to provide STEP members with a best practice position and guidance in due course. In the meantime, STEP has published an update to its briefing note on the GDPR, listed below.

Please note that STEP will be publishing a webinar in January 2019, recorded by the chair of STEP’s GDPR working group, Edward Hayes TEP of Burges Salmon, that will offer some interim guidance on the application of the GDPR to trust and estate practitioners.

Emily Deane TEP is STEP Technical Counsel

What’s happening in England and Wales?

Rita Bhargava TEPAs I come to the end of my term as Chair of STEP’s England and Wales Regional Committee, I wanted to reflect on some of the developments since I took on the role in January 2017.

Raising our profile

Internally at STEP, much of the emphasis over my time as Chair has been on raising STEP’s profile. From the ‘Talk to a TEP’ public-awareness campaign and accompanying website, advisingfamilies.org, which has seen 130,000 visits and 15,000 ‘Find a TEP’ searches since its launch 18 months ago, to the ‘Grow with STEP’ member recruitment campaign launched earlier this year, which has led to a 250 per cent increase in visits to the ‘Join’ section of the STEP website. It’s great that resource is being put into these important projects, which should help build greater awareness of STEP – ultimately benefiting all members.

Battling probate fees

Externally, my time as Chair has been dominated by political turmoil, the Trust Registration Service and of course, probate fees. The latter has once again reared its head in recent months, and like many of you, I am disappointed the government is again threatening to increase probate fees to extortionate levels that are wholly disproportionate to the costs involved. It has failed to take into account any of the concerns raised last year when this was first mooted. Ironically, it comes at a time when the government is introducing online application processes for probate, and removing the need to swear papers, making the cost of an application cheaper and more efficient. STEP has once again been active in highlighting concerns around the proposed measures, and we are pleased to see our arguments echoed by the House of Lords committees that review Statutory Instruments, which have both stated that the proposals amount to a ’stealth tax‘ and a ’misuse of the fee-levying power’. We hope these concerns are enough to stop the measure being approved as it is debated by parliament in the coming weeks.

Looking ahead

So what’s coming up over the next few months?

Last month, branch chairs from all over the region gathered for the England and Wales Branch Chairs’ Assembly. Over 20 branches were represented, and it was wonderful to meet so many branch chairs. It was a great opportunity to discuss how to increase engagement with members, how to support branches, and to ask branches what they expect from STEP. It was also the perfect time to hear about work being done by STEP, in particular the Member Journey project, which involves examining the experience of a member from their first contact with STEP and throughout their membership to see where improvements can be made. This is an important and far-reaching project, which will be worked on throughout 2019.

Another big project that will be launched shortly is the all-new STEP Directory. 2018 saw the last hard-copy STEP Directory and Yearbook, and in January 2019 STEP will launch the new online-only Directory. The new Directory will build on the existing online member-search facility, with upgraded functionality and new features, such as a Firm Search. Members will have access to an extensive and up-to-date network of firms and practitioners for referral and business development, and clients will be able to search for qualified professionals and firms. As the new Directory will be extensively promoted throughout 2019, you will want to make sure your contact information is current, and your profile properly showcases your expertise and experience. Log on now to update your details.

Separately, work is also underway to upgrade the STEP website to make it more user-friendly; to continue to build on the success of STEP’s Employer Partnership Programme; and to develop STEP’s qualifications so that students can tailor elements of the STEP Diploma so that it is more relevant to their specific areas of practice.

Sadly, I will be stepping down as Chair at the end of December and take this opportunity to welcome Denese Molyneux TEP as Chair from 2019 and wish her every success. I would like to thank all the staff at STEP for their hard work, dedication and continued support.

Finally, may I wish you all a merry holiday season and a peaceful New Year.

Rita Bhargava TEP, Chair, STEP England & Wales Regional Committee

UK Labour party tables motion against probate fees rise

Houses of Parliament, LondonThe UK government’s plan to increase probate fees has been criticised by the opposition in the House of Lords.

Labour’s Justice Spokesperson, Lord Beecham, has tabled the following motion of regret in relation to The Non-Contentious Probate (Fees) Order 2018:

‘Lord Beecham to move that this House regrets that the draft Non-Contentious Probate (Fees) Order 2018 will introduce a revised non-contentious probate fee structure considered by the Secondary Legislation Scrutiny Committee to be “so far above the actual cost of the service [it] arguably amounts to a stealth tax and, therefore, a misuse of the fee-levying power” under section 180 of the Antisocial Behaviour, Crime and Policing Act 2014; and that this Order represents a significant move away from the principle that fees for a public service should recover the cost of providing it and no more.’ 6th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A).

As statutory instruments cannot be amended, this type of measure can put parliamentarians’ disapproval on record, if passed. Motions to regret are usually voted on at the same time as the legislation.

The probate fees order is currently awaiting scrutiny by the Joint Committee on Statutory Instruments. As noted by Lord Beecham’s motion, the House of Lords Secondary Legislation Scrutiny Committee has already voiced its concern [PDF] about the proposals.

STEP will continue to monitor the situation and will provide further updates where appropriate.

Daniel Nesbitt, Policy Executive, STEP 

Employer partners gather at STEP Global Congress

STEP Global CongressWe’ve just returned from the STEP Global Congress in Vancouver – what a great event it was, reports Nigel Race.

Congress kicked off with two excellent keynote sessions on the theme of change: ‘Change has changed’, which was focused on change in the individual practitioner; and ‘Serving the New Clientele’, which looked at cultural types and an emerging client-hybrid culture. Two top-ranking speakers, James Grubman TEP and Dennis Jaffe TEP, made the case for developing stronger interpersonal skills and cultural knowledge to better serve clients and emerging client groups. We discussed with Dennis the possibility of bringing that session to a wider audience at some point in the future. Perhaps this might be a special offer for STEP’s Employer Partnership Programme (EPP)!

And on the theme of EPP, it was fantastic to see so many accredited firms present this year. There were no EPP-accredited firms at the first Congress in Miami, only a couple at Amsterdam in the very early days of EPP in 2016, and now, at Vancouver, we had 11 partners*. It is growing into a great community and will only continue to grow. It was nice to bump into Leanne Kaufman TEP, President Royal Trust, RBC, who has done so much to support STEP and EPP. And many congratulations to Borden Ladner Gervais LLP on its award. What a cheeky move to achieve the accreditation just in time to receive it on home soil and at the STEP Global Congress! Nancy Golding TEP, a member of the STEP Worldwide Board, received the award on the Friday morning in front of the whole auditorium. Well done to Nancy and her colleagues at BLG – we were delighted to make the award to you.

With Congress now over, we’ve been taking stock and reviewing the event. Feedback from sponsors and delegates has been outstanding. We had 95 per cent of delegates rating it as excellent or good, 97.5 per cent saying they would attend a similar event in the future, and the sponsors were delighted to have so many high-profile, senior figures in the industry.

STEP has already received bids to hold the next event – watch this space!

*EPP attendees at STEP Congress:

  • Burges Salmon (England and Wales)
  • RBC Estate & Trust Services (Canada)
  • Rawlinson & Hunter (Cayman Is, E&W)
  • BLG (Canada)
  • Farrer (E&W)
  • Wright Johnston & Mackenzie (Scotland)
  • Stonehage Fleming (Switzerland)
  • Mishcon de Reya (E&W)
  • Butterfield Trust (Guernsey)
  • Carey Olsen (Guernsey)
  • Bedell Cristin (Jersey)

 

Nigel Race is Director, Professional Development at STEP

GDPR – Invitation to Members

Emily Deane TEP

Even though the European General Data Protection Regulation (GDPR) came into force on 25 May this year in the UK there is still widespread confusion around its application to the private client industry.

STEP has formed a Data Protection Impact Group with the objective of reviewing the GDPR’s impact in relation to the trust and estate industry. The group would like to collate some of the practical issues that have arisen and submit them to the Information Commissioner’s Office (ICO) with the intention of the ICO addressing some of the gaps in the guidance and legislation.

Tell us your views

STEP would like to invite members to provide examples of how the ICO guidance/legislation may be difficult to apply in practice, so that we can present these issues to the ICO and underline that the impact is potentially far-reaching.

Issues that have been identified include:

  • Firms will be holding large amounts of personal data on clients and non-clients relating to their wills, family trusts and estates. Information (‘special category data’) on individuals other than clients is generally required in order to carry out the client’s instructions, for example a will. However as it stands a firm will have to obtain consent from third parties for this information because there are no express exemptions that apply in Article 9(2). Unlike the express exemption for ‘legal advice’ in the DPA 1998.
  • Subject access requests have become a first port of call now for potential beneficiaries who are seeking further information about a will or trust. It is currently very difficult for an advisor to gauge how much information they can provide or restrict and what the applicable justifications are for doing so.
  • The majority of private client firms in the UK will also undertake international work. File notes and legal documents containing personal data will need to be sent to third countries. If this data applies to a client it is possible to reply upon their consent to the transfer, however when the data relates to non-client data subjects then their consent is required. There does not appear to be an exemption in the GDPR that deals with this common occurrence.
  • Firms are currently uncertain as to whether they should destroy/delete some of the personal data that they hold, for example, some personal information that is held on a family member could be more pertinent to one person than another. The firm may be exposing itself to risk by destroying data that become relevant at a later date.
  • There is uncertainty as to whether all potential beneficiaries of a trust or estate should be provided with a copy of the trust’s privacy policy, even when the settlor or testator was adamant that they did not want the individual, who may be vulnerable, to know that they may benefit at some stage.

STEP is hopeful that by providing the ICO with some working examples then it might recognise and review the difficulties that advisors are facing in this connection. We aim to provide members with a best practice position when further information is available.

We would very much value your input. Please send your examples to standards@step.org.

Emily Deane TEP is STEP Technical Counsel

How to win a STEP Private Client Award

George HodgsonEntries are open for the 2018/19 STEP Private Client Awards until 31 May 2018. The Awards are widely acknowledged as being one of the premier events in the private client industry calendar. Winning an Award is also a very clear and recognised hallmark of excellence.

How then, do you go about winning an Award?

Enter
The Awards are free to enter (we simply ask entrants to consider a donation to charity) and open to all firms and practitioners in the industry.

There can sometimes be a perception that the Awards are only for larger firms, but almost every year smaller firms impress the judges by demonstrating innovation, an exceptional focus on a particular area or an outstanding rapport with their clients. Applications from all sizes and types of firm are therefore welcome.

Similarly potential entrants away from the major industry centres sometimes feel they might be disadvantaged. The judges for the awards are nevertheless increasingly international and drawn from across the spectrum of the private client industry. Strong entries will always attract attention from the judges, wherever they originate from.

Don’t just copy and paste from marketing materials!
You will be judged by fellow senior industry professionals and the language and tone of your entry needs to reflect that fact. Cutting and pasting from your website or marketing material will usually not impress the judges. Neither will excessive use of superlatives and hyperbole. What will go down well is an evidence-based entry that gives a clear exposition of what the firm has done over the past year to make it stand out from the crowd.

Apply for the right award
It is a constant surprise to the judges how many firms enter the wrong category. One submission even began with the bold statement: ‘We are a leading (another category all together) firm…’. Read the category criteria carefully, and if you think the judges might have difficulty understanding why you are applying for a particular category, help them by explaining your business better.

Answer the questions
Probably the most common reason for submissions going by the wayside is that the judges feel that the questions and criteria laid down in the Awards entry pack have not been answered. It is standard advice to every student sitting an exam to read the questions carefully and make sure you answer them. The same holds true for anyone drafting a submission for a Private Client Award. There are typically five criteria on which each award will be judged. Judges are asked to score entries on each of those criteria, with each carrying equal weighting. If your entry does not cover one of the criteria, you are likely to be penalised.

Give examples and evidence
Solid evidence and real examples demonstrating why you think your firm deserves an Award always go down well with the judges. To illustrate, most entrants in most categories claim to be ‘client-focused’, but some give real-life examples of how they achieve this and what they have done to go that extra mile for their clients. This attracts the judges’ attention far more than a simple assertion.

Be consistent
The judges are both curious and cynical in equal measure. They will check what you say in your submission against what you say on your website and other sources of information. Glaring inconsistencies tend to result in entries receiving relatively short shrift.

Know your (word) limits
Brevity is a strength, but submissions sometimes fall by the wayside because there is little clear detail on key issues and yet the submission is significantly below the 1,100-word limit. Equally, don’t go over your 1,100 words: the judges have a lot of entries to read!

Remember we are choosing ‘Xxx of the Year’
Your firm may well be successful and very good at what it does, but the Awards are intended to highlight those that have achieved particular success over the past year. General statements about historic successes are therefore far less relevant than what you have actually achieved over the past 12 months (1 June 2017 – 31 May 2018) .

From the above it is probably clear the STEP Private Client Awards are very competitive. Submissions across the board are usually of a very high standard. That is why the Awards remain so prestigious and the Awards Ceremony on 7 November 2018 remains one of the networking highlights of the year for many senior practitioners.

George Hodgson is Chief Executive of STEP.

2017: A brief editorial review

STEP Journal covers 2017As 2017 draws to a close, and with the final STEP Journal (Dec/Jan) having recently landed on your (or your office’s) doormat, this seems the perfect juncture take a quick look back on our member publications and bulletins this year.

Above are the varied, colourful covers of this year’s ten STEP Journal issues, each of which is an undertaking by itself; for example, readers would be surprised – and perhaps a little concerned – by the amount of discussion regarding the width of the pneumatic tubes on November’s ‘knowledge’ edition. President Trump narrowly missed an appearance on the cover of May’s US/Canada focus, but will surely take comfort that his proposed tax reforms were considered in that issue (‘Trump yet to play his cards‘🔒, by Bruce Zagaris TEP). Two covers particularly stood out for us: August/September’s attention-grabbing pop-art graphic, and March’s sensitive, understated design for that issue’s vulnerable client focus.

According to our web statistics, this year’s most popular STEP Journal feature so far (online) is ‘Will survivorship clauses survive?’🔒, in which John FitzGerald warns of the potential pitfalls of using such clauses when will-drafting in the UK. Our most-read Trust Quarterly Review (TQR) article of 2017 is ‘Signs of convergence‘🔒 by John Riches TEP, on the potential expansion of CRS disclosure.

STEP’s global outlook was reflected in the wide range of jurisdictions covered by this year’s articles, which covered developments in Australia, Austria, Bermuda, Brazil, the British Virgin Islands, Canada, the Cayman Islands, China, Colombia, the UK Crown Dependencies, Dubai, Estonia, France, Germany, Hong Kong, India, Italy, Luxembourg, Mauritius, New Zealand, Panama, Scotland, Singapore, South Africa, Spain, Switzerland, the UK, and the US. Members can access all of this year’s issues of the STEP Journal and TQR, and those of previous years, at our back-issue archive.

All that content has been well-received by members, according to the results from this year’s STEP Member Satisfaction Survey: out of the six most valuable member benefits, the STEP Journal – our flagship title – was ranked highest, followed by the News Digests (second), Membership Newsletter Emails (third) and TQR, (fifth). The editorial team is delighted with these results, and will strive to do even better next year.

A huge amount of behind-the-scenes work goes into our editorial output. Following her promotion in December 2016 to Managing Editor of Publications, Blathain Iqbal has diligently managed the production of the STEP Journal and TQR to a consistently excellent standard – from planning and commissioning, to editing and production; a massive undertaking. Helen Swire, who joined in August as Editor, took over our News Digests and has quickly adapted to the subject matter, ably supported by Peter Mitchell, our longstanding news freelancer. We wish the very best to Colette Hagan, who recently departed for a new position; as Communications Executive, she was responsible for the Membership Newsletter Emails this year, and contributed to our other editorial streams. We look forward to welcoming, in January, an Assistant Editor to strengthen the team. Thanks also to Think, our publisher, which handles the production and commercial elements of the STEP Journal and TQR.

Finally, special mention goes to the members of our respective Editorial Boards for the STEP Journal and TQR, who provide invaluable expert feedback on articles before publication. Stan Barg TEP and David Wallace Wilson TEP have just stepped down, and we thank them for their commitment and help over many years.

In 2018, we will continue our efforts to ensure that our editorial content accurately reflects the breadth of jurisdictions and disciplines that STEP represents. The STEP Journal content calendar for 2018 is now available here, and if you have any feedback, suggestions or questions about our editorial output, please do remember to get in touch at editorial@step.org.

We wish our readers and members a very happy festive period.

John Read, Head of Editorial, STEP

What’s happening at STEP in England and Wales

Rita BhargavaWith the new year just round the corner, it seems time to reflect on what’s been happening at STEP in recent months.

STEP’s global Branch Chairs’ Assembly took place in London late last month, and was extremely well-attended. Its main focus was to ensure members feel they have an effective voice in developing STEP’s membership offer, and that it is delivered consistently and effectively, regardless of where people are based. One example of the changes coming is a standardised approach for routes to membership across the world, which will be introduced in February.

The BCA resulted in some invaluable feedback which will ensure that STEP develops for its members in an ever-changing environment and provides a consistent service across the board. It was also a great opportunity to meet and network with Branch Chairs and STEP colleagues from around the world.

Membership satisfaction questionnaire
The results of the 2017 members’ questionnaire were extremely positive, with over 2,000 members responding. Almost all (97 per cent) of members would recommend STEP to a colleague, 91 per cent of members said STEP had benefited their career (a 17 percentage point increase from 2008), and 93 per cent said STEP membership is considered important in the industry. It was particularly heartening to read members’ answers to ‘what STEP meant to them’ with some describing it as a ‘gold standard for our industry and a benchmark of excellence.’

Public awareness campaign
STEP’s public awareness campaign has also been highly successful. Six months on, our advisingfamilies.org public-facing website has had over 60,000 page views, with 6,500 viewing its ‘Find a TEP’ facility, and more than 450 followers on its accompanying social media channels. STEP is working hard to increase content, and attract more influential followers.

As the year draws to a close, may I wish everyone a peaceful restful holiday season and a Happy New Year.

Rita Bhargava TEP, Chair, STEP England & Wales Regional Committee

STEP’s Special Interest Groups under the spotlight

SIG Spotlight Sessions 2017The end of November saw STEP Special Interest Groups’ (SIGs’) annual day of conferences, the ‘Spotlight Sessions’, held at the Montcalm Hotel in London and attracting over 300 international delegates.

The day started early with a breakfast-time Philanthropy Advisors SIG session. Outgoing chair Suzanne Reisman TEP welcomed attendees and contributed to a panel discussion, which also included Keyvan Ghavami of Act On Your Future, Jacqueline Lazare TEP of Royds Withy King and Julie Wynne TEP of Froriep. A lively discussion ensued, the takeaway point being that advisors are missing a business opportunity if they do not at least raise the issue of charitable giving with their clients.

The International Client SIG session began with Joseph Field TEP of Withers Bergman LLP delivering the keynote lecture on the changing landscape for international clients, quipping that events move so fast, that if you miss the news for 15 minutes, you can get completely behind. Tony Pitcher TEP of LGL Trustees Limited moderated a discussion on tax regimes, which included contributions from Luxembourg, Cyprus, the US, the UAE, Italy and Switzerland.

Bill Ahern TEP of Ahern Lawyers, David Russell QC TEP of Outer Temple Chambers and Wendy Martin of EY – Channel Islands discussed ‘attacks on intermediaries’ and practical issues in relation to the Common Reporting Standard (CRS). Wendy said that implementing CRS was a massive challenge, and depended hugely on how you interpret the law. She asked what might happen to all the data required, and what could go wrong, before pointing out the gaping contradiction with data protection legislation that mandates privacy. David expressed his concern that regulatory requirements are making it increasingly difficult to open a bank account and many entirely legitimate people are being excluded from the banking system, and Bill noted that in a number of countries there were very good reasons for not wanting the government to know about your financial affairs, not least personal security.

The day marked the official launch event of the newest of STEP’s SIGs, the Digital Assets SIG. Leigh Sagar TEP of New Square Chambers gave an introduction to digital assets and the issues they present for estate planning and administration. Together with the panel, he presented the audience with some quite alarming scenarios which left not a few squirming in their seats. If someone has your computer password, they could empty your bank account. If you let someone else use your Facebook account, you’ve committed an offence. If a family member dies, you may not be able to read their emails, or access their accounts. If your relative left online gambling debts that needed to be paid, but you didn’t have the passwords, you would not be able to settle their estate. The panel discussed a number of ways of ensuring passwords stay secure and yet are accessible to those who need them. One of the simplest ideas was to keep a list in a sealed envelope. The session concluded with discussions on electronic signatures and wills and the important, and growing, subject of cryptocurrencies and their taxation.

This year saw the Mental Capacity SIG and the Cross-Border Estates SIG partner on connecting sessions looking at cross-border capacity. Drawing the largest attendance of all the sessions, the panels comprised speakers from 12 jurisdictions providing a round-up of existing and new laws in each, followed by an active panel discussion.

The Business Families SIG session then explored the unique considerations an advisor must consider in an advisory position to a family business wishing to sell, as opposed to non-family entities. The audience heard first-hand accounts from family business owners Ian McKernan of Molecular Products Group and Alex Scott of Sandaire, alongside experts from the advisor community.

The final session was presented by the Contentious Trusts and Estates SIG and focused on the rules against self-dealing, fair dealing, no conflicts and their exceptions, considering the rules in light of recent decisions. Their session welcomed speaker Vicki Ammundsen TEP, who had come all the way from New Zealand.

Joanna Pegum, STEP PR & Media Executive

The UK Budget and donor benefit rules for charities

Emily Deane TEPThree years ago, the UK government’s Autumn Statement 2014 announced a review of the Gift Aid donor benefit rules with the intention of simplifying them. Following a call for evidence, it launched a consultation on 18 February 2016 setting out a range of options.

The responses helped develop specific proposals for reform, which were set out in a second consultation that ended on 3 February 2017. We have been informed that a summary of responses to the second consultation will be published on 1 December 2017.

This week the government announced that it would replace the current three-tier thresholds with two tiers. Under this reform, donors will be no worse off in terms of the value of benefits that charities can offer them, as the new limits will be, for every eligible donation, at least as generous as the current limit.

Current system

The current donor benefit limits (the relevant value test) is a set of monetary thresholds that determines the value of benefits that charities may give to donors as a consequence of a donation and still claim Gift Aid on that donation. These are:

• For donations up to £100, the value of the benefit can equate to a total of 25% of the donation.
• For donations between £100 and £1,000, the value of benefits is capped at £25.
• For donations over £1,000, the value of the benefit can equate to a total of 5% of the donation, up to a maximum annual benefit value of £2,500.

New system to be introduced

Under the new limits, the benefit threshold for the first £100 of the donation will remain at 25% of the amount of the donation. For larger donations, charities can offer an additional benefit to donors, up to 5% of the amount of the donation that exceeds £100. Some examples are provided in the table below. The total value of the benefit that a donor can receive remains at £2,500.

Extra statutory concessions

The government also announced that it will bring into legislation the four extra statutory concessions that currently operate in relation to the donor benefit rules.

Time-frame

Legislation to make all the changes will be introduced in Finance Bill 2018-2019 and will come into effect from 6 April 2019. Draft legislation will be published in 2018.

Examples of how the new benefit thresholds will work:

Size of donation (£) Existing relevant value test  – size of donation
determines level of benefit (£)
Planned relevant value test from April 2019 (£)
70 17.50 17.50
100 25 25
400 25 40 (25% of 100 (25) plus 5% of 400-100(15))
1,000 25 70 (25% of 100 (25) plus 5% of 1,000-100(45))
1,500 75 95 (25% of 100 (25) plus 5% of 1,500-100 (70))

STEP will continue to liaise with HMRC’s Charities Tax Team in this connection.

Emily Deane TEP is STEP Technical Counsel