ILM Annual Conference 2014- Presentation Slides

The Institute of Legacy
Management
Annual Conference 2014
in association with Irwin Mitchell
Solicitors

Welcome
Helen Hoare
Chair, ILM

Accessing Information From
Estates
Paula Myers
Head Of Wills Trust and Estate Disputes
Irwin Mitchell Solicitors

Why do we need
information?
It is a common problem.
Accessing Information From Estates

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 Media
and avoiding “selfie” harm
Duncan Lamont, Partner
Charles 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

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 Schroedel
Henmans Freeth LLP

Capacity
•Banks v Goodfellow
•Mental Capacity Act 2005
•The Golden Rule

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 2005
A 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

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]

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; and
5)It was by way of the undue influence being
exercised that the will came to be executed.

Re Edwards [2007] - The Burden of Proof
The burden of proof is on the Claimant and it is HIGH:
It is not enough to prove that the facts are consistent
with 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

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

Managing Volatile Legacy Income
Crispin Ellison
Legacy 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 Ellison
Legacy Link
www.legacy-link.co.uk

The Law Society WIQS Scheme – regulation
of Will Writing by another means?
Gary Rycroft
Vice Chair, The Law Society Private
Client Section Executive Committee

Stephen Cook
Third 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

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