Trusts & Settlements
Maitland prides itself on its character as a multi specialist set of chambers covering the whole spectrum of chancery law from the commercial to the traditional.
In the latter context we have barristers who cover all areas of trusts will trusts and other fiduciary relationships, from drafting and advising on the construction of documents to participation in the contentious trust cases that have become a major feature of trust law in recent years, both in this country and in other jurisdictions; we have barristers who have taken part in many of the headline trust cases of recent years.
At the same time we are ready to pursue issues of the administration of trusts and estates, including such matters as claims by dependents for provision out of an estate, the powers of trustees, questions of taxation incidental to the running of such trusts and the administration of estates, the many issues that arise out of the increasingly frequent use of foreign trustees, and the variation of trusts to enhance the value of the beneficiaries' interests. So far as this latter area of work is concerned we see not only the use of the Variation of Trusts Act 1958 and the compromise jurisdiction but also what is now more frequent namely questions arising out of powers of appointment and discretionary trusts, not least in the case of the potential for advantageous rewriting of will trusts within the period of two years after a death. We are not a tax set in the sense of being prepared to advise on what may be called tax schemes; but there is a frequent need to deal with tax questions in the course of the administration of trusts and will trusts, and we are ready to take these issues as far as is permissible without the need for specialist tax advice.
We frequently have to advise on such matters as the duties and potential liabilities of trustees of potentially insolvent estates, the indemnities which should apply in favour of trustees and/or beneficiaries, the position of trusts in divorce proceedings, changes in trusteeships, and the contractual liabilities of trustees and ways in which their exposure can be limited to the funds in their hands. As protectorates become more frequent so there is an increasing need for advice on the powers and duties of protectors and questions as to their status as fiduciaries; and we are ready to advise on all aspects of alleged breaches of trust or fiduciary duty.
Applications to the Court with which we are familiar range from the quasi consensual to the wholly contentious; directions for trustees under Part 8 of the CPR can often be resolved with comparative ease and at limited cost; Part 7 claims need the litigation skills for which Maitland has built up a formidable reputation.
It is important to note that in many trust matters it is a vital aspect of the case to preserve as much confidentiality as possible over a family's affairs, and we pride ourselves in doing what we can to prevent inappropriate publicity, something which calls for a readiness to explore all types of dispute resolution including of course the confidential processes of mediation. At present the potential for arbitration of trust disputes is limited, but a committee on which one of our senior silks was a member has explored the scope for arbitration and it seems likely that in years to come this will become a further method of confidential dispute resolution in which Maitland will be ready to lead the way.
Maitland does indeed see itself as ready to lead the way in a diversity of areas ranging from the setting up of structures of trusteeship, to the proper use of secret purpose or blind trusts, from questions of allegations of the use of trusts for money laundering purposes, to cross border trust transactions. Questions often arise as to the transfer of funds from one trust to another, sometimes in a different jurisdiction or subject to a different proper law, and we have wide experience of such matters. In the same way we are regularly called on to advise on questions of foreign trusts, above all those whose proper law draws on English trust principles.