Legal Practice Notes

Resulting trusts represent one of the three species of trust that do not need to be declared or evidenced in writing at all. The others are constructive and implied trusts, though it is arguably doubtful whether any implied trust exists that is not in reality either a resulting trust or a constructive trust (‘implied’ in this setting often being used simply as a synonym for ‘resulting’ or ‘constructive’). Categorisation of resulting trusts Resulting trusts are either presumed or automatic. A presumed resulting trust arises where: there is a voluntary transfer of property by one person to another; or title to property is placed in the name of someone other than the person who provided the purchase money or other consideration for the acquisition An automatic resulting trust arises where the disposing party has failed to dispose of the entirety of their legal and...

Relief of poverty is one of the oldest and most broadly recognised charitable aims. By ‘relief’ of poverty we mean the ‘easing’ of its consequences, ie the removal or lessening of disadvantages experienced by an individual or community owing to a lack of financial resources. Acceptable relief activities At its most fundamental, charities working to relieve poverty provide essentials such as food, clothing and shelter, or the means to obtain them. Yet the relief of poverty is not confined to addressing only these core necessities. In the past, courts tended to describe poverty purely in financial terms. Increasingly, however, there is acknowledgement that the ‘poor’ are not solely the destitute, but also those unable to furnish themselves with the goods, services or facilities that most people consider routine, and therefore must ‘go without’. In the UK it is not limited to those who qualify for state...

This Practice Note This Practice Note explains what is needed for England and Wales to recognise a foreign marriage or civil partnership, addressing questions of validity and polygamous unions. Unlike the rules for acknowledging an overseas divorce or dissolution of a civil partnership, whether an overseas marriage or civil partnership is recognised has always been, and remains, a matter for the domestic law of England and Wales—both before and after 31 December 2020 (the end of the implementation period ( IP))—and is thus largely untouched by the UK’s exit from the EU ( Brexit). For practical assistance on recognising an overseas divorce or dissolution, see the Practice Notes: Recognition of overseas divorce or dissolution of civil partnership and Recognition of divorce and legal separation under the 1970 Hague Convention. For material on Brexit-related implications, consult the Practice Note: Family proceedings with EU...

Power to bring a private prosecution A private prosecution is initiated by an individual, company or organisation acting independently of the police, the Crown Prosecution Service ( CPS) or any other public prosecuting body. Section 6(1) of the Prosecution of Offences Act 1985 ( POA 1985) safeguards the ability of a private person to commence and run criminal proceedings. A broad spectrum of offences is routinely pursued through such actions, often by specialist bodies and charities. Notably, the courts have repeatedly acknowledged this as a significant right within the justice system. Charities, including the Royal Society for the Prevention of Cruelty to Animals ( RSPCA), bring cases privately. Organisations such as the Federation against Copyright Theft and the British music industry pursue misuse of intellectual property through private prosecutions. The Financial Conduct Authority ( FCA) has also exercised this route, acting in the...

What is a predatory marriage? A predatory marriage is the practice of selecting and marrying a vulnerable person, often someone older, to take control of their property and assets after they die. The intention is to secure their property and assets upon death. It involves grooming the person and influencing them into a decision to marry that they might not even understand. What does a predatory marriage look like? The predator will typically employ three tactics to gain control over the person: Grooming — making the person feel valued and loved. They may describe themselves as the person’s carer and repeatedly highlight to the person how valuable they are to them, telling them this again and again, and may even move into the home. Isolation — aiming to cut them off from family and friends, and may often claim the family have...

This Practice Note condenses the law, guidance and practical approach to executing simple contracts and deeds. It highlights the main distinctions between deeds and simple contracts, pinpoints those transactions that must be effected by deed, and outlines the execution formalities for both. It also covers the need for signature, use of counterparts, dating, smart legal contracts, virtual execution and electronic signatures. We have created a comprehensive, interactive collection to help users recognise and navigate the concepts and recurring issues that arise when executing documents. Each section or phase provides practical guidance, precedent-style clauses and Q& As relevant to that stage. For further information, see: Execution collection. Creating contracts A contract is a binding agreement that confers rights and imposes obligations on two or more parties. There is extensive case law on contract principles which is not examined in detail here. Put simply, for a...

The rules relating to perpetuities and accumulations Originating in common law and the Perpetuities and Accumulations Act 1964 ( PAA 1964), the doctrines on perpetuities and accumulations grew increasingly outdated and problematic. In 1989 the Law Commission began consulting on reform. This process produced a 1993 paper exposing flaws in the framework, followed by a 1998 final Report with a draft bill, which in turn led to the Perpetuities and Accumulations Act 2009 ( PAA 2009). PAA 2009 duly took effect on 6 April 2010. Its purpose is to streamline and modernise the law, introducing revisions to both the rule against perpetuities (sometimes called the rule against remoteness of vesting) and the rule curbing excessive accumulations. Practitioners must nevertheless consider the former regime where it still operates in particular situations and remain mindful of its continuing application in certain cases....

Historically, some applications to the Court of Protection (the court) required applicants to secure permission before initiating proceedings. That step functioned as a filter to deter weak claims and spare others unnecessary cost and inconvenience. Under the Court of Protection Rules 2017 ( COPR 2017), a wider range of matters can now be brought without first seeking permission. Where permission remains necessary, the request must be included within the main application. No permission is needed for applications concerning: property and financial affairs a lasting power of attorney created under the Mental Capacity Act 2005 ( MCA 2005) an enduring power of attorney Applications about the personal welfare of the person who lacks capacity ( P) may require permission, but not if the issue concerns deprivation of P’s liberty. The detailed thresholds appear in MCA 2005, s 50, and COPR 2017, Pt 8, and this...

The principles of the notarial act are that it is: the notary’s own act, and expressly not that of the parties named in the document an official record of a fact, event, or transaction set out in documentary form, irrespective of the format adopted by the underlying document, fact, event, or transaction The notarial act serves to provide authentication by means of documentary evidence that will be accepted in the receiving jurisdiction where it is intended to be used......

From 1 April 2007, sections 42 and 43 of the Mental Capacity Act 2005 ( MCA 2005) took effect. Together they activated a Code of Practice to direct everyone dealing with matters governed by the MCA 2005. Section 43 of the MCA 2005 set out the process, including consultation, that had to be completed before adoption of the code. Those steps were duly finished and, in line with section 42, a Code of Practice (the Code) was issued. That provision suggested there could be multiple codes, yet until 2008 it appeared that only a single composite code was envisaged. On 3 November 2008, however, an additional code—the Deprivation of liberty safeguards Code of Practice (the DOLS Code)—came into force. Its introduction followed the insertion of several new sections into, and other amendments of, the MCA 2005 by the Mental Health Act 2007 ( MHA 2007)....

Introduction It is a frequent practice for someone not domiciled in Jersey, yet owning movable assets located there—such as an offshore investment or a bank account—to put in place a separate Jersey Will to regulate the succession of those assets on death. Although preparing a distinct Jersey Will is not compulsory in these circumstances, doing so usually makes the administration of the relevant assets after death markedly more straightforward and efficient. Where a person dies leaving assets in Jersey with a value exceeding £30,000, the asset holder is legally obliged to require production of a Jersey Grant of Representation before releasing any funds. This will be a Grant of Probate if the deceased left a Will, or a Grant of Letters of Administration if they did not (the Jersey Grant). The Jersey Grant confirms who is legally entitled to administer the deceased’s Jersey...

What is a trust for a bereaved minor? The Finance Act 2006 introduced a distinct, special category of trusts for bereaved minors ( TBM), sometimes also called a bereaved minor’s trust ( BMT), to provide IHT concessions for trusts set up in favour of children with a deceased parent. Before 22 March 2006, trusts of this kind would have fallen within the broader Accumulation and Maintenance ( A& M) regime, but no new A& M trusts can be created after that date. See Practice Note: Accumulation and maintenance trusts— IHT [ Archived]. TBMs have a more limited application than A& M arrangements. Except in rare circumstances explained below, they are brought into being on the death of a parent for the benefit of that parent’s minor children. A bare trust is not a TBM. Typically, a beneficiary’s entitlement under a TBM is...

When drafting a Will, it is vital to anticipate as many practical scenarios as possible, ensuring the legacies set out can operate exactly as the testator intended them to. Even a carefully prepared Will can encounter situations where, in practice, a testamentary gift does not ultimately take effect. Reasons a gift may fail There are numerous different routes and circumstances by which a legacy can fail. Some of the more frequent grounds for failure are noted below. Failure to survive the testator: the doctrine of lapse If a named beneficiary dies before the testator, the legacy to that person lapses and therefore is ineffective. In addition, a Will may stipulate that a beneficiary must outlive the testator by a stated minimum period of time, and if they do not meet that timeframe, the gift then fails. On intestacy, the statutory rule requires a surviving spouse or civil...

This Practice Note sets out practical steps for arranging the execution of a document by an individual who has an impairment or disability, or where the individual and their adviser do not share the same language. For overarching guidance on executing contracts and deeds, see the following Practice Notes: Deeds Executing documents—deeds and simple contracts We have also created a comprehensive, interactive collection to help users recognise and navigate key concepts and frequent issues in document execution. Each stage includes practical guidance, precedent clauses and Q& As tailored to that phase. For further details, see: Execution collection. Inability to read or comprehend documents in writing An impairment may prevent a signatory from reading a document themselves, for instance where they are partially sighted or blind. It may equally be that the signatory does not read or speak the language used in the...

This Practice Note sets out a concise overview of the rules governing witness and expert evidence in Court of Protection ( Co P) proceedings. It cross-refers to Parts 14 and 15 of the Court of Protection Rules 2017 ( COPR 2017), as well as to Practice Direction 14A: Written evidence ( PD 14A) and Practice Direction 15A: Expert evidence ( PD 15A) to the COPR. Witness evidence Under COPR 2017, r 14.3(1), the default position is that any fact requiring proof through a witness must be established: at a final hearing, by the witness’s oral testimony, or at any other hearing, or where there is no hearing, by the witness’s written evidence. When a witness is called to give oral evidence at a final hearing, their witness statement will stand as their evidence in chief unless the court orders...

Personal representatives ( PRs) possess wide-ranging authority to manage a deceased individual's estate. This Practice Note sets out practical measures PRs may adopt to discharge their duty to collect and secure the assets in a deceased person's estate, alongside steps to prevent loss to the estate. Securing the assets The PRs' overriding duty in administering an estate is: to gather in the estate's assets; and to keep those assets protected The PRs should, without delay, locate and hold in safe custody: all original deeds, the deceased's Will, and any other testamentary papers documents evidencing assets and liabilities, e.g. account books, life policies, share certificates, cheque books and credit cards, and records of digital assets and crypto-assets any loose cash, including foreign currency The PRs should also obtain from HM Land Registry official copies of the title register for any land or...

Practice Note This Practice Note examines how domicile is identified and its various forms—origin, choice, and dependence—within family proceedings, setting out how the court approaches domicile and the consequences for a case. It also addresses how habitual residence is assessed, including for a child, with reference to pertinent authorities. The effects of Brexit, including transitional measures, are considered. At 11pm ( GMT) on 31 December 2020, the Brexit transition/implementation period concluded following the UK’s exit from the EU. From that moment (termed in UK law as ‘ IP completion day’), core transitional rules ceased and notable alterations took place across the UK’s legal framework. These changes affect advisers evaluating which court has jurisdiction to hear a dispute. For direction, see Practice Note: Family proceedings with EU connections—toolkit. It is important to distinguish domicile from habitual...

This Practice Note concentrates on the legal framework and practical steps for appointing directors, and the procedures by which a director may retire or step down from office. It examines the role performed by a director. It also considers the different types of director in a company. It outlines the required notifications and related actions on any director change, including updating statutory registers and submitting filings to Companies House as necessary. The note reviews the pertinent provisions of the Companies Act 2006 ( CA 2006), together with the company’s articles of association. It further addresses the additional requirements for appointing, retiring and resigning directors of listed public companies, including the UK Corporate Governance Code ( UKCG Code), which applies to UK and overseas companies with a listing of equity shares in the equity shares (commercial companies) category in the UK (listed...

This Practice Note explains when a litigation friend, an accredited legal representative ( ALR), or another representative (collectively known as Rule 1.2 representatives) is required in Court of Protection proceedings, and sets out who may act as a litigation friend or as a Rule 1.2 representative. It also details the respective rules governing the appointment and removal of litigation friends and Rule 1.2 representatives in the Court of Protection. Throughout, it refers to the relevant provisions of the Court of Protection Rules 2017 ( COPR 2017) and to the Court of Protection Practice Direction 17A— Litigation friend ( PD 17A) and Practice Direction 17B— Rule 1.2 representatives ( PD 17B). For proceedings in the county court and High Court, reference should be made to the Civil Procedure Rules 1998, Pt 21— Children and Protected...

Claims for construction are widespread in practice, with numerous reported decisions over time. In essence, these applications ask the court to ascertain the testator’s intention as expressed and evident in the Will itself as drafted. Put simply, the court decides what the chosen wording in the instrument actually means and signifies. While any person with an interest in the Will may issue a claim, it is usually the executors who do so, prompted by doubt about the efficacy of a clause or by another perceived ambiguity in the document. The court of construction The label refers to any court that, within its jurisdiction, can determine questions about the meaning and effect of testamentary matters. The Chancery Division holds that jurisdiction, and so does the county court in the uncommon instance that the estate is worth under £30,000. A court may authorise personal...