Legal Practice Notes

This Practice Note offers practical guidance on correct execution of simple contracts and deeds for unincorporated associations. Unincorporated associations arise from agreement between members who come together, typically for a non-profit purpose. Examples include sports clubs or voluntary groups. For more information, see Practice Note: Unincorporated associations. We have created a collection that serves as a comprehensive, interactive resource to help users identify and navigate the concepts and common issues involved in executing documents. Each section or phase provides practical guidance, precedent clauses and Q& As relevant to that stage. For more information, see: Execution collection. Capacity An unincorporated association has no separate legal identity, meaning it cannot enter into contracts in its own name. As a result, it has no rights, cannot assume duties and cannot own property. Property said to ‘belong’ to an unincorporated association will be vested in the leading members of the...

This Practice Note summarises Bermuda trust law at a high level and signposts its distinctive characteristics, including expansive reserved powers rules, codified Hastings Bass measures, and adaptable perpetuity provisions. Bermuda’s trust legislation Trustee Act 1975 ( TA 1975) – addresses, among other matters, trustees’ powers, entitlements and duties, together with the Bermuda courts’ supervisory jurisdiction in trust matters. Trusts ( Special Provisions) Act 1989 ( TSPA 1989) – sets out Bermuda’s broad reserved powers regime, firewall protections, and rules on purpose trusts. Perpetuities and Accumulations Act 2009 ( Bermuda) ( PA 2009) – states that trusts created on or after 1 August 2009 may exist indefinitely provided they do not own Bermuda land, and permits the disapplication of the rule against perpetuities for earlier trusts. Trusts ( Regulation of Trust Business) Act 2001 – requires the licensing of persons...

Introduction The strand of domestic law that originally arose from EU obligations and was captured by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) as retained EU law ( REUL) is, from 2024, referred to as ‘assimilated law’. This change follows the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023). The new label signals notable shifts in the domestic standing and handling of assimilated law. Its objective is to advance the process of bringing former EU rules into the UK’s legal system and to support their reform... Reminder: what was retained EU law ( REUL)? To understand the move from REUL to assimilated law, it is useful to revisit REUL, which was established by EU( W) A 2018. For background on EU( W) A 2018, see Practice Note: Brexit—key legislation explained. After the Brexit...

What is private international law? Private international law ( PIL), also known as the conflict of laws and distinct from ordinary domestic English law and public international law, addresses disputes that involve a foreign element. A ‘foreign element’ means a link to a legal system other than English law. Conflict rules belong to the internal law of a jurisdiction and therefore vary from place to place. When civil or commercial dealings extend beyond one country, the states concerned may have substantive rules that regulate the subject matter in very different ways. PIL offers a means of adjusting between these differing laws. In England, PIL comprises the rules an English court applies when deciding a case featuring a foreign element. After characterising the cause of action and isolating the issue in dispute, the court may determine that foreign, rather than English, law should govern. PIL rules are not the...

The templates set out here derive from the examples in Chapter 15 of Cretney and Lush on Lasting and Enduring Powers of Attorney. It also supplies model clauses intended for use within health and welfare lasting powers of attorney ( LPAs) herein. For drafting language tailored to property and financial affairs LPAs, refer directly to: LPA precedent instructions and preferences—property and financial affairs LPAs. For clauses that fit either property and financial affairs or health and welfare LPAs, consult: LPA precedent instructions and preferences—property and financial affairs and health and welfare LPAs. For further guidance on LPA instructions and preferences, see Practice Note: LPAs—instructions and preferences......

While many charities prefer to manage and handle their own investments, for some this falls outside their capacity, whether due to insufficient expertise, limited time, or a shortage of staff. In such cases, it is sensible to look at employing agents, nominees and/or custodians. Agents Section 11 of the Trustee Act 2000 ( Tr A 2000) specifies—at least for unincorporated charities—the powers available to trustees, supplementing those in their governing document, to delegate particular functions to agents. Accordingly, trustees may, under these powers, pass on defined responsibilities to an agent for the purposes permitted. For Tr A 2000, s 11, the Charity Commission explains that ‘delegate’ means a person undertaking a prescribed duty on behalf of the trustee body as a whole. In this setting, the delegate is the agent appointed to perform a defined task. An agent should not be appointed, or continued in post,...

There are numerous trusteeship positions that can emerge from the way a charitable trust is structured and run, ranging from a traditional all‑purpose trustee to a more confined or specialist capacity, such as a bare trustee or a nominee. Functions of trustees of charitable trusts At its most straightforward, there is one collective of individual trustees and, for a charitable (rather than a private) trust, their number is unrestricted even where the trust assets include land. In that arrangement, the trustees take responsibility for: holding legal title to the trust property making all decisions on banking, property management, insurance and investments recruiting staff and entering into contracts receiving and applying income, and, where authorised to spend it, capital, to meet administrative costs and advance the charity’s purposes preparing the annual return and accounts otherwise meeting charity law...

As many charities grapple with financial strain—from difficulties raising finance, falling donations and weaker investment returns, to cancelled or defaulted major contracts, public funding reductions and mounting pension deficits—some risk slipping into insolvency... Definition of insolvency The Insolvency Act 1986 ( IA 1986) offers no explicit definition. Nevertheless, two tests are commonly relied upon to identify insolvency: where liabilities outweigh assets (“balance sheet” insolvency) where debts cannot be met as they fall due (“cash flow” insolvency) Charities are typically incorporated (often as companies limited by guarantee) or unincorporated, though some are created by Act of Parliament or Royal Charter. Different rules apply to incorporated and unincorporated bodies... For an incorporated charity, it is treated as “unable to pay its debts” if any of the following occur: it does not pay, secure, or settle a creditor’s claim over £750 within three weeks of...

The requirements for reporting and accounting by charities The obligations are detailed in sections 130–176 of the Charities Act 2011 ( CA 2011) ( Part 8: Charity Accounts, Reports and Returns), alongside the Charities ( Accounts and Reports) Regulations 2008, SI 2008/629, and are supplemented by the relevant Statement of Recommended Practice— Accounting and Reporting by Charities ( SORP). For reporting periods (financial years) starting on or after 1 January 2019, the updated second edition of the SORP ( FRS 102), issued in October 2019, is in force. See also the Charity Commission’s guidance: the essentials November 2016 ( CC15d). The obligations vary depending on the size and nature of the charity. To identify which requirements apply, check: whether the charity is also a company its income for the current financial year the value of its assets whether it must be registered with the Charity Commission for England and Wales (the...

Determining a person’s ability to marry, cohabit, consent to sexual relations, and agree to contraception involves matters that are highly sensitive and intensely personal, engaging individuals’ Article 8 rights to a personal and family life. This Practice Note first sets out the overall legal framework for capacity assessment under the Mental Capacity Act 2005 ( MCA 2005), and then considers the tailored tests developed by the courts for each issue, reflecting the careful balance between protecting vulnerable people and promoting self-determination. With a view to enabling vulnerable adults with learning disabilities and other cognitive difficulties to enjoy the advantages of married life and/or a sexual relationship, the applicable capacity tests have intentionally been pitched at a low threshold and are widely thought to require a lesser level of capacity than, for example, the standard for making a...

This Practice Note offers guidance on trusts in the British Virgin Islands ( BVI). For general background on the BVI, see Practice Note: Private Client— British Virgin Islands— Q& A guide [ Archived]. Trusts law The BVI’s trusts regime is set out in the Trustee Ordinance ( Cap 303, Laws of British Virgin Islands) ( TO) (as amended) together with the Virgin Islands Special Trusts Act 2003 (as amended) ( VISTA Law). While grounded in English law principles of equity and jurisprudence, there are notable statutory divergences. English common law carries persuasive, not binding, force, and BVI trusts law has in many areas been varied and displaced. Matters of particular interest to settlors are considered below. Registration There is no obligation to record a trust, or its documentation, on any formal register. However, providers of trustee services resident in the BVI are registered and regulated under the Banks and...

ARCHIVED: This archived Practice Note summarises which elements of UK tax law were impacted by the UK’s departure from the European Union ( EU) during the period between exit day (31 January 2020) and IP completion day (31 December 2020), and also the period immediately after IP completion day. It is not maintained and is provided solely for background purposes. For more information, see: Brexit, assimilated law and tax—overview. From exit day (11 pm on 31 January 2020), the UK ceased to be an EU Member State and no longer took part in the EU’s political institutions or governance structures. However, under the transitional measures in Part 4 of the Withdrawal Agreement, exit day initiated an 11-month implementation period ( IP) during which, for many purposes, the EU continued to treat the UK as if it were a Member State. For broader...

Taxation regime What factors determine tax liability in your jurisdiction (eg domicile, residence or citizenship)? Tax liability in Argentina hinges on residence. As a rule, Argentine nationals are treated as residents, and foreign individuals are residents for tax purposes if either (i) they qualify as residents under Argentina’s migration rules, or (ii) they have remained in Argentina for 12 months (certain brief absences permitted). Argentine nationals may cease to be Argentine residents by obtaining residence abroad in line with that country’s migration laws, or by spending a continuous 12-month period in another country, provided that short trips back to Argentina not exceeding 90 days do not interrupt this count. The cessation of residency takes effect on the first working day of the month immediately following the end of that 12-month period. In any case, shedding Argentine tax residency is not...

While the Court of Protection (the court) is able to issue a single, discrete order for a person who lacks capacity, that will not invariably be the most appropriate course. Where it is not, the court may instead direct that a deputy be appointed to handle the specific matter or to act on a continuing basis, particularly where the incapacity is expected to endure into the future. The court’s authority to appoint a deputy sits in section 16 of the Mental Capacity Act 2005 ( MCA 2005). From January 2023, the route for appointing a property and affairs deputy was altered. Before then, applications were paper-based, begun by lodging a COP1 form with supporting documents; the court would then issue the application, after which the relevant parties were served/notified. A new upfront notification model was trialled in 2021, under which the person to whom the...

Solicitors working in elderly client matters must be able to seek guidance and liaise with the client’s GP or relevant specialist clinicians, as well as with others engaged in financial decision-making. To do this effectively, they should pinpoint the advice required and identify who is best placed to deliver it. Practitioners also need familiarity with the terminology used and the reasons the advice or report is being sought. This means clarifying what is sought, why it is needed, and who should supply it precisely. Medical practitioners On a client’s behalf, practitioners brief clinicians for many purposes, including assessments of capacity for particular legal actions and choices, alongside general health and medication guidance. Likewise, a practitioner acting for, or as, a deputy or attorney may find the patient’s GP seeking their input on varied matters such as completing a DNAR (do not attempt...

‘ Amateur sport’ refers to a sportsperson participating without receiving payment. For many years, community amateur sports clubs ( CASCs) — which are not charities — have benefited from charity-style tax reliefs, acknowledging their close resemblance to charitable bodies. Section 660 of the Corporation Tax Act 2010 defines when a sporting activity is organised on an amateur footing, guided by these core principles: it is non-profit making it offers members and their guests the usual advantages of an amateur sports club it does not surpass the threshold for paid players Although these principles are not set out in the Charities Act 2011 ( CA 2011), it is broadly accepted that the same definition can apply to charities as well as CASCs... Community amateur sports club scheme Introduced in April 2002, the CASC scheme has enabled many local amateur sports clubs to register with HMRC and...

Administration Administration is a process intended to grant an entity breathing space, aiming at either a rescue or a restructuring, or to deliver a better outcome for all creditors than a liquidation. The contemporary statutory administration framework appears in Schedule B1 to the Insolvency Act 1986 ( IA 1986), brought into force on 15 September 2003 by the Enterprise Act 2002. This Practice Note is directed primarily at real estate practitioners. It clearly sets out the core features of administration and examines essential provisions to be included in contracts for the sale of land where the seller is in administration......

Forthcoming change: Following the Government’s response to the Ministry of Justice and the Office of the Public Guardian ( OPG) consultation Modernising Lasting Powers of Attorney, the Powers of Attorney Bill secured Royal Assent on 18 September 2023, becoming the Powers of Attorney Act 2023 ( PAA 2023). PAA 2023 will amend the Mental Capacity Act 2005 ( MCA 2005) to deliver a more modern lasting power of attorney ( LPA) service. The changes will include: Introducing regulations so those involved in making an LPA can choose to sign the LPA digitally or on paper; Removing the option for attorneys to register an LPA, meaning only the donor will be allowed to register; Introducing regulations setting identification verification requirements for registration applications; Providing for a single route for registration objections to the OPG and widening who may object to include third parties, not only those named in the...

Calculation for an individual (or trust or estate) Proceeds xxxxxx Less: sale costs xxxxx; original cost xxxxx; improvements xxxxx; total costs xxxxxx Gain before reliefs xxxxxx; less: brought‑forward/current year losses xxxxxx Gain before annual exemption xxxxxx; annual exempt amount xxxxx; taxable gain xxxxxx; tax at relevant rate xxxxx Notes to the computation Base cost: purchase price plus improvements, or 31 March 1982 value (including pre‑1982 improvements) if held then, even if lower; legal/agents’ fees are part of acquisition/disposal costs; only improvements still present at sale are allowable. Rates: 10% with business asset disposal or investors’ relief; otherwise 10%, 18%, 20%, 24% or 28%. Residential property or carried interest can attract higher rates. Offset losses and the annual exemption first against higher‑rated gains. Non‑relieved gains get 10% (18% for...

Article 12 of the Organisation for Economic Co- Operation and Development ( OECD)’s model tax convention ( MTC) Article 12 addresses how royalties arising in cross-border situations are taxed. It sets out how taxing rights are apportioned between two jurisdictions: the state where the recipient of the payment is resident (the recipient state), and the state where the payer is resident (the source state) This Practice Note examines: what constitutes royalties under a double tax treaty or convention ( DTT) the model convention’s method for taxing royalties targeted anti–treaty shopping measures how individual DTTs deviate from the model approach, and the practical scenarios in which the royalties article must be considered The EU Interest and Royalties Directive, which eliminated withholding tax on royalty payments between associated companies in different EU Member States and was implemented in UK law, was...