ilm annual conference 2014- presentation slides

The Institute of Legacy Management Annual Conference 2014

in association with Irwin Mitchell Solicitors

WelcomeHelen Hoare Chair, ILM

Accessing Information From Estates

Paula MyersHead Of Wills Trust and Estate Disputes

Irwin Mitchell Solicitors

Why do we need information?

It is a common problem.





The accepted position for beneficiaries to obtain information is set out in the case of Schmidt –v-Rosewood Trust Ltd [2003] 2 AC 709 which states that“no beneficiary has any entitlement as of right to disclosure of anything which can plausibly be described as a trust document (this is especially the case if the beneficiary is a discretionary object)”• What therefore can be disclosed? • It is a lost cause?• Has the position changed even taking into account the status of a

beneficiary?


There is a presumption that the following documents which relate to the actual management of the Trust and the trust assets can be disclosed but generally to beneficiaries with a significant interest in the trust•The Trust Deed•Agendas and Minutes of Trust meetings regarding the administration of assets (not trustee decisions)•Legal advice obtained by the Trustees at the Trust expense•Trust accounts•Any other documents relating to the management of the assets so IFA or accounting advice, investment performance etc



When is information not available to beneficiaries who have historically been able to inspect documents and having a proprietary interest in some documents?•Anything that is considered to be confidential – this can include a letter of wishes from a settlor (in some cases the settlor can give guidance to the trustees to specifically not disclose this and so the trustees will follow that guidance)•If there is the hint of a claim against the Trust or the trustees – see Re M Trust, Re L Trust [2003] WTLR 491•If there is a hint of a claim against the settlor – see E Trust Company Limited v B [2014] JRC 027•Any documents between the trustee and other beneficiaries•If there is some form of hostility between other beneficiaries and the information is being requested to help with the progress of a dispute or litigation



Breakspear -v- Ackland [2009] Ch32 J Briggs confirmed that letters of wishes should not be disclosed but there is a strong presumption in favour of disclosing documents relating to the assets and management of the trust.Update in the case of B Family Trust [2013] JRC 136



It is helpful to understand what Trustees have to consider when a request for information is made• Should the beneficiary receive the documents requested• What is the status of the beneficiary, how likely are they to benefit from the trust. • Should there be any conditions attached to the disclosure to maintain confidentiality.

Should this be limited or an express term attached to the disclosure. Restriction could be to lawyers only. The use of the documents can also be restricted – say to part of the disclosure process of the litigation.

• If the documents are disclosed, does this cause any problems with the class of beneficiaries

• If disclosure if refused, will the beneficiary make an application to court and will there be any costs consequences for the trustees or the trust?

• How should disclosure be made or should inspection only be allowed • Should the trustee make an application to court for guidance and authority to

disclose the information?




Is the skyline changing?

More information about Trusts being disclosed and an increasing desire for more openness.

Prest case in family/divorce cases looking behind the corporate veil and now behind trusts – information about trust interests are now requested on the Form E in a divorce case that asks about assets? Certainly the court wants to understand Trusts more when being asked to make a decision to divide and allocate assets.

Imerman case – What does the future hold?

Reputations, the Law and Social Mediaand avoiding “selfie” harm

Duncan Lamont, PartnerCharles Russell LLP


The Law Today

• Article 10 of the Human Rights Act gives a right of free expression BUT: freedom of speech, not freedom of ALL speech:

there are countervailing rights to protect individuals, companies and other organisations including:

• defamation• confidentiality & law of privacy• copyright• commercial confidentiality (e.g. to give rights to control use of

images: cf Douglas & Zeta-Jones v Hello! ).


Defamation• Untrue facts which lower an individual’s or a company’s

reputation• Robust or rude comment ok – as long as facts are right• No injunctions (usually)• NB: malicious falsehood

Confidentiality & new law of privacy• True or untrue allegations which invade private life• Injunctions possible (even “super injunctions”)

The Law Today (Continued)


(i) The Press Complaints Commission (‘fast, free, fair’).

• current code of practice - http://www.pcc.org.uk/cop/practice.html• ‘all members of the press have a duty to maintain the highest

professional and ethical standards’• applies to newspapers and magazines including freelances, and

linked online blogs.

Accuracy• newspapers and periodicals must take care not to publish

inaccurate, misleading or distorted material including pictures.

Media Regulation


(i) The Press Complaints Commission ‘fast, free, fair’ (continued)

Misrepresentation

• journalists must not generally obtain or seek to obtain information or pictures through misrepresentation or subterfuge

• documents and photographs should be removed only with the consent of the owner.

The public interest

• detecting or exposing crime or serious misdemeanour • protecting public health and safety• preventing the public from being misled by some statement or action of an

individual or organisation.

Media Regulation (Continued)


(ii) The Ofcom Code

• more detailed procedural guidelines than PCC code: http://www.ofcom.org.uk/tv/ifi/codes/bcode/

• dealing fairly with contributors.• opportunity to contribute.• non-participation.• the use of hidden microphones and cameras.• door-stepping.

(iii) BBC - the Editors’ Guidelines (formerly known as the Producer’s Guidelines).

Media Regulation (Continued)


Section 1 • “Serious harm” test

◦ Jameel v Dow Jones & Co Inc. (2005)◦ Thornton v Telegraph Media Group (2010)

• An Individual now needs to show real reputational damage• A Company is required to show that a defamatory statement has

caused, or is likely to cause, serious financial loss

Section 3 • Fair Comment replaced by “Honest Opinion” with no need for “Public

Interest”• Bickering on the Internet?

Defamation Act 2013 All Singing and Dancing?


Section 4 • Publication on a matter of public interest• An attempt to make comprehensible the Reynolds v Times Newspapers Ltd

(1999) defence of responsible journalism• But still fact sensitive

Section 5 • Operators of Websites• The defamation (Operators of Websites) Regulations 2013

(1 January 2014)

Section 8• The Single Publication Rule

Defamation Act 2013


Sections 12 and 13• Powers to order defendants to publish a summary of a judgment or 3rd

parties to remove a statement from the internet.

An Overview• Juries gone• No definition of when a statement is defamatory• Burden on publisher to prove truth• Costs – CFA and DBA chaos

Defamation Act 2013


This information has been prepared as a general guide only and does not constitute advice on any specific matter. We recommend that you seek professional advice before taking action. No liability can be accepted by us for any action taken or not taken as a result of this information.

Charles Russell LLP is a limited liability partnership registered in England and Wales, registered number OC311850, and is authorised and regulated by the Solicitors Regulation Authority. Charles Russell LLP is also licensed by the Qatar Financial Centre Authority in respect of its branch office in Doha. Any reference to a partner in relation to Charles Russell LLP is to a member of Charles Russell LLP or an employee with equivalent standing

and qualifications. A list of members and of non-members who are described as partners, is available for inspection at the registered office, 5 Fleet Place, London EC4M 7RD.

Isolation & loneliness amongst older people and the work of The Silver Line

Esther Rantzen ,CBE

Penny Jeffreys

Where there’s a will there’s a way …..of saying thank you

Peter Jeffreys

Peter’s Will

Responses from charities to solicitor

• All 13 charities sent acknowledgement receipt• 3 sent only a receipt, no covering letter• 1 sent a receipt with a hand scribbled note –

“Forwarded with our grateful thanks” and an illegible signature

• 2 sent a cursory covering letter along the lines of “We enclose a receipt as requested. As you can imagine we are grateful for these funds”.

• None of these 6 responses asked the solicitor to pass on appreciation to surviving family members

And some better responses…• The remaining 7 charities asked the solicitor to pass on their

appreciation to any surviving members. 3 asked if the solicitor could let surviving family members know they would like to get in touch to express their thanks directly.

• Of these 7 charities– 4 gave a general blurb of the sort of things the legacy would be

used for – a pretty standard letter. – The remaining 3 gave specific details in their letter of projects on

which they planned to use the legacy funds (and one, GWCT, invited us to choose which project would be most appropriate given Peter’s interests).

What happened next?

• We wrote a carefully worded email to Chief Execs of 6 apparent “worst offenders”

• 2 excellent responses – profuse apologies, no excuses, very personalised letters.

• 3 apologised but blamed our solicitor for not telling them there were any close surviving family.

• 1 had previously responded but letter had gone astray.

How were we feeling after this?

• Disillusioned• Disappointed• Disinclined to leave money to

charities in our own wills

What had we expected?

• A letter of thanks to the solicitor, asking for it to be forwarded to any surviving close family members

• The letter would set out specifically how the legacy will be used to further the aims of the charity.

• For larger legacies ask the solicitor if the surviving family members would like to get in touch to express their thanks in person and to discuss how the legacy could be best used.

Say thank you as if the person were still alive.

Setting aside Wills: The Holy Trinity of Arguments

Mona SchroedelHenmans Freeth LLP

Capacity

•Banks v Goodfellow

•Mental Capacity Act 2005

•The Golden Rule

Banks v Goodfellows

The Test – Did the Testator understand: (1) the nature of the acts and their effects?

(2) the extent of the property he was disposing?(3) the claims to which he ought to give effect?(4) Was the testator’s mind affected by a disorder or delusion which was active in bringing about the disposal which the testator would not otherwise have made?

Banks v Goodfellows

Mental Capacity Act 2005A person is “unable to make a decision for

himself” is he is unable to:(a) Understand the information relevant to the

question(b) Retain that information (c) weigh the information as part of the decision

making process(d) Communicate his decision

BAD DECISIONS don’t indicate lack of Capacity

Mental Capacity Act 2005

The Golden Rule

Re Simpson

Mr Adam’s Stud Farm

The Golden Rule

Death Bed Will – Wharton v Bancroft

The Golden Rule

Not all that glitters is gold....

The Golden Rule

Knowledge and Approval (1) Do the circumstances arouse the suspicions of

the Court as to whether the contents of the will represented the wishes and intentions of the Deceased as known and approved by him?

(2) Has scrutiny of those circumstances by the Court dispelled those suspicions?

Paynton v Hinch [2013]

Knowledge and Approval

Hawes v Burgess [2013]


Examples of circumstances giving rise to suspicions:

1)Instructions given/Will prepared by a beneficiary 2)Out of character deviation from previous wills 3)No explanation in change of circumstances 4)Draft not read over/no copy provided 5)Witnesses unknown to testator 6)Failure to disclose will within a reasonable time after death


Undue Influence The Test - Killick v Pountney [1999]:

1)The Defendant was in a position to exercise influence;

2)Influence was exercised;3)The influence exercised was undue;4)The undue influence related to the will in

question; and5)It was by way of the undue influence being

exercised that the will came to be executed.

Re Edwards [2007] - The Burden of ProofThe burden of proof is on the Claimant and it is HIGH: It is not enough to prove that the facts are consistentwith the hypothesis that there was undue influence – It must be shown that the facts are inconsistent with any other hypothesis!

Undue Influence

Cowderoy v Cranfield [2011]

“evidence required must be sufficiently cogent to persuade the Court that the explanation for what has happened is that the testator’s will has been overborne by coercion rather than there being some other explanation.”

Undue Influence

The Schrader Family

Undue Influence

Schomberg v Taylor 2013

Undue Influence

Undue Influence

If there is another plausible explanation, there is little point in pursuing a claim for undue influence AND a huge costs risk.

Undue Influence

SUMMARY

Managing Volatile Legacy IncomeCrispin EllisonLegacy Link

How much does your legacy income move around year by year?

The causes

• Delays in the estate administration, over a year-end

• Lower or higher numbers of notifications• Windfalls – legacies over £X00,000• Others?

How would you rank these?

The usual ‘remedies’• Squeezing the pipeline

• Accruing everything

• Requesting frequent updates

• Praying…

How much does your Finance Director know about legacies?

• How long it all takes?• ‘75 Act claim period?• The ‘bairn’s share’ in Scotland• SORP 2005?• Forecasting legacy income?

Is there a need for us to educate?

‘Managing’ the income stream

• Expectations – timeframes, obstacles, range of volatility, conservative forecasting, the value of investing in future legacies

• A ring-fenced ‘smoothing fund’, built up in the good years, available in the poor years – not ‘reserves’, but a form of trust fund.

• Discuss

Thank you

Crispin EllisonLegacy Link

www.legacy-link.co.uk

The Law Society WIQS Scheme – regulation of Will Writing by another means?

Gary RycroftVice Chair, The Law Society Private Client Section Executive Committee

Stephen CookThird Sector Magazine

Current Challenges Facing the Wider Charity Sector

Legacy Professional of the Year sponsored by

ILM Awards Ceremony

CiCLA Student of the Year sponsored by

The proposed merger of the Institute of Legacy Management with the Institute of Fundraising