Monthly Archives: September 2012

ILN Today Post

Consultation on Vulnerable Beneficiary Trusts

Introduction

On 17 August 2012, the government set out their proposals on vulnerable beneficiary trusts in a new consultation. The consultation seeks views on (i) how best to define a vulnerable beneficiary for tax purposes and (ii) proposed changes to remove inconsistencies between different tax regimes in the qualifying conditions for vulnerable beneficiary trusts.

What are vulnerable beneficiary trusts?

Currently, vulnerable people in need of assistance are afforded certain tax advantages for assets held in trusts and the income from them. The qualifying conditions for these trusts are restrictive. If they qualify, however, there are three reliefs available to them: More…

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Rainmaking Recommendation from Jaimie Field: You Never Know Where You Will Meet Your Next Client

Today, we have another fabulous recommendation from Jaimie Field. Tomorrow, I’m heading to Madrid for our 2012 ILN European Regional Meeting, so you’ll be seeing some posts coming up from our sessions there, and in the meantime, enjoy reading Jaimie’s recommendation!

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Rainmaking Recommendation #64: You Never Know Where You Will Meet Your Next Client

(There will be a reader who will see themselves in this Rainmaking Recommendation because he was one of its stars.)

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Executor sentenced to 3 years in jail for misappropriating estate

In R. v. Singleton (Supreme Court of British Columbia), an executor (who was also a lawyer) was required to pay restitution and sentenced to 3 years imprisonment for theft and fraud in relation to his misappropriation of nearly half a million dollars from an estate.

The total value of the George Estate was $1,061,648 from which certain bequests and payments were made by Marvin Singleton in accordance with Mr. George’s will. There was a shortfall of nearly $500,000. Mr. Singleton said that he invested estate funds poorly. The Crown successfully argued that Mr. Singleton committed fraud and violated his legal responsibility as an executor and trustee of the estate of a client by taking the funds entrusted to him and using them for his own purposes.

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WESA- Wills , Estates and Succession Act, B.C.

When will the new Wills and Estates legislation actually  be operative in British Columbia? Many readers of this and other  estate related blogs know that there will be substantial changes to the entire Wills and Estates regime in British Columbia known as “WESA”- short form for the Wills , Estates and Succession Act.

The proposed changes have been in the works for years and have passed all of the essential  necessary legislative hurdles. However  notwithstanding various predictions that the legislation will be operative in short order, we still are awaiting same. Better that all the details are worked out in advance. So when might the date be? A source very close to the legislative drafters has advised me that he expects that the new legislation might not come into play until the Fall of  2013.  More information on the changes that will be coming our way can be found in Richard Weiland’s blog of March 20th, 2012.  

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When can you launch a Wills Variation Act (“WVA”) proceeding?

Sometimes the contents of a will are known before probate. In these circumstances, those spouses and children that have not been adequately provided for under the will invariably turn their mind to starting a Wills Variation Act claim before probate. This is prudent considering the limitation period for WVA claims is short. A WVA claim is statute barred 6 months after probate. So, when is the earliest date on which a potential claimant can launch a WVA proceeding?

Section 3(1)(a) of the WVA provides that a proceeding must be commenced “…within 6 months from the date of the issue of probate of the will in British Columbia…” You might ask: does this language prevent a person from bringing a WVA proceeding before probate? The BC Court of Appeal considered this question in the 1938 case of Murgatroyd v. Stewart. Although the Court considered the old Testator’s Family Maintenance Act (“TFMA”), the statutory language at issue was the same. The majority of the Court held that the right to start a TFMA proceeding before probate is not restricted by the “within 6 months” language because that language establishes a limitation period and is therefore meant to apply after probate. In other words, the majority held that “within 6 months” is meant to impose a final limit on when a person can launch a proceeding, not limit the earliest date on which a person can launch a proceeding. On the other hand, the minority held that the Court can only hear a proceeding between the date of probate and 6 months after the date of probate.

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Week of September 17, 2012 on ILNToday – A Roundup

We’re almost at the end of September already, and I can’t believe it! Next week, we’ll be in Madrid for the ILN’s 2012 European Meeting, and I’m going to be talking about producing content, so I hope to see even more from our firms in the future.

But for this week, let’s take a look at the most popular pieces from ILNToday!

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ILN Today Post

FDI Policy of India Relaxed

The Department of Industrial Policy & Promotion, Ministry of Commerce and Industry, Government of India (“DIPP”) issued five Press Notes on September 20, 2012, to give effect to the Government of India’s (“GoI”) recent decision to relax foreign direct investment (“FDI”) in various sectors. We provide below, in brief, the key amendments effected by the Press Notes to the FDI Policy of India (“FDI Policy“):

Single Brand Retail Trading – The GoI had earlier permitted 100% FDI in single brand retail trading subject to certain restrictive conditions and riders, which were proving to be a deterrent for the brands wanting to enter the Indian retail segment. Given the industry’s lukewarm response thereto, GoI has finally relaxed some of the rather restrictive conditions and introduced new conditions as well:

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ILN Today Post

Enterprise Bargaining Update

Good faith bargaining requirements – judging the tightrope?

Prior to the introduction of the Fair Work Act 2009 (Cth) (FW Act), a number of high profile companies were strident in their refusal to enter into enterprise agreements with unions.

The FW Act introduced a number of obligations designed to make it more difficult for those employers to adopt that position by imposing good faith bargaining requirements that bargaining representatives are required to meet when negotiating enterprise agreements.  More…

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ILN Today Post

Dentist drilled by the NSW Court of Appeal

Case review: Dean v Phung [2012] NSWCA 223

Introduction

On 30 June 2012 the NSW Court of Appeal held that unnecessary dental treatment provided by a dentist over a 12 month period amounted to trespass to the person.  In reaching this conclusion, the Court held that the Civil Liability Act 2002 (NSW) (Civil Liability Act) did not apply to the appellant’s claim, that the defence (to trespass) of consent was not available to the respondent and that the appellant was eligible for an award of exemplary damages. More…

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ILN Today Post

RET scheme review to address key energy industry concerns

The operation of the Renewable Energy Target (RET) is currently under the scrutiny of the Climate Change Authority (CCA) in the inaugural task for the independent government advisory body.

With electricity costs increasing and RET charges being contractually passed down the supply chain to customers, the design of the scheme has implications for energy consumers as well as generators and retailers. More…

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