All change

In his article, Stephen Alexander TEP guides us through important developments in the arena of private wealth and trust disputes. Mental capacity is becoming ever more relevant and remains an area where a clear evolution can be seen from the traditional all-or-nothing view towards a more differentiated approach, which depends both on timing and the matter at hand. Trust practitioners will be particularly interested in the section on trust insolvency and the effect it has on the position of creditors (including the trustees themselves, e.g., in respect of their fees), as well as the considerations about the role of protectors in light of recent contradicting court decisions.

In her article, Juliet Moses TEP analyses the evolving jurisprudence of the New Zealand courts regarding the qualification for charitable status of organisations that undertake advocacy. This is a fascinating topic that poses fundamental questions regarding the values of society. It shows the evolution of such values and how a cause that could be seen as political at a certain point in time can become generally accepted and its pursuit considered as beneficial for the community. Moses’s analysis of the three leading cases demonstrates the difficulties faced by judges in having to make decisions on matters that are at the frontier between the judicial and political arenas. This explains the lack of clarity and direction of the jurisprudence, even if there seems to be a general trend towards a more liberal approach.

Constant change is the hallmark of the various legislation, recommendations, rules and guidelines that aim at improving tax compliance through increased transparency of legal entities, trusts and similar arrangements. In their article, Henry Brandts-Giesen TEP and Daniel McLaughlin TEP take us on a clear, concise and complete tour of the most relevant developments in this area. Despite isolated cases where the right to privacy has been given priority (such as the noteworthy decision of the French Constitutional Court in Re Helen S and, more recently, the well-reported judgment of the EU Court of Justice regarding the Luxembourg beneficial ownership register), transparency and the public policy goals underpinning it usually take precedence. Taking into consideration the almost limitless possibilities offered by technology to access and use data, vigilance on the part of those who make and apply the laws is needed.

Legislative change is occurring in Scotland, where the Trusts and Succession (Scotland) Act 2024 received Royal Assent very recently. Sarah-Jane Macdonald TEP sets out the highlights of this new Act in her article, such as the provisions on the removal of trustees and areas for possible improvement, e.g., in relation to the missing possibility for the executors of the last trustee to die or beneficiaries who are absolutely entitled to appoint a new trustee. This is a useful overview of the new legislation, which has been anticipated for more than 100 years.

Change is also on the agenda in Brazil, where a Bill has been enacted that deals with the treatment of trusts from a tax perspective and, at the same time, lays the foundation for a more general regulation of trusts. In their article, Luciana Guaspari de Orleans e Bragança TEP, Daniel Veloso de Almeida and Pedro Henrique Silva Sanches analyse these new provisions and their consequences for Brazilian taxpayers. Although the legislator is addressing trusts and the harmonisation of the rules that the Bill will bring about, the authors point out several areas where further clarifications will be required.

If change is the common denominator of the articles in this issue, its pace clearly differs from one area to another.