STEP Chambers of the Year Award

A Wills Act 2020?

In July 2017 the Law Commission published its consultation paper on “Making A Will”. This is a wide-ranging general review of the law of making and interpreting wills, both wills made by adults who have capacity to do so for themselves, and statutory wills authorised by the Court of Protection for adults who lack testamentary capacity.

The Law Commission’s stated reason for undertaking this review is that:

“The law of wills needs to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era.”

The consultation, which closed on 10 November 2017 and which is expected to be followed by a report in late 2018 and ultimately a draft Bill for Parliament, has the potential to bring about great changes in the law of wills, which will be novel to everyone who has professional dealings with them, since some essential elements of the existing law date from the 19th century. These potential changes are at the heart of the work of members of 5 Stone Buildings, and several barristers here have appeared in cases which are referred to in the consultation paper, so it has been a subject of great interest to us.

I attended two of the workshops run by professional associations in collaboration with the Law Commission’s team, at which some of the proposals were discussed, and were the subject of lively debate. I also gave a longer talk about aspects of the proposals and some of the published responses to them at our Trusts and Inheritance half-day seminar on 28 November 2017. The Law Commission team explained at the workshops that they have adopted three guiding principles:

• To support the exercise of testamentary freedom
• To protect testators in a way which responds to the needs of an ageing population which is at risk of financial fraud
• To ensure that the law is clear and certain, not only for lawyers professionally engaged with it day in and day out, but for people who only occasionally come into contact with it.

As the Law Commission recognise, these principles can pull in different directions, and there is work to be done in trying to find an appropriate balance between them.

There are two features of the consultation which have attracted headlines and comment, and which have potential for controversy. Firstly, the use of technology and the potential validity of wills which are produced without any paper content or written signature. Secondly, the proposal to introduce a dispensing power, which would permit the court to admit to probate a will which was not executed in accordance with the strict legal formalities, but where there is sufficient evidence that it contains the wishes the testator intended to set out in a valid will.

As it happens, during the consultation period, the Supreme Court of one of the jurisdictions which has a dispensing power of the type which the Law Commission is asking us to consider decided a case which was the subject of headline news even in England, and which gave some vital context to both of these issues. In the case, Re Nichol [2017] QSC 220, the Supreme Court of Queensland upheld the validity of a short but very clear statement contained in an unsent text message found on the mobile phone of a man who had committed suicide. Many people have reacted negatively to the idea that this could become possible in England, but reading the decision persuaded me of the value of a dispensing power in the law and of the law to reflect the extent to which people need and use modern technology in their lives – and on their death.

Trusts and Inheritance half-day seminar

On 28^th November, chambers held a very successful half-day seminar on Trusts and Inheritance. Taking place at the Royal Society of Arts and Chaired by Penelope Reed QC, the conference covered a range of topics of current interest, including disclosure by trustees under the data protection legislation, retrospective remedies for tax problems, statutory wills as an alternative to probate disputes and key topics in the Law Commission’s consultation on wills.

New members of chambers

We are delighted to announce that Amanda Hardy QC and Oliver Marre joined 5 Stone Buildings on 1 December 2017. Both are well known tax counsel, who have been in practice in Lincoln’s Inn, and are listed in the legal directories as leading barristers in their fields.

We are particularly pleased to be able to raise chambers’ profile in tax matters, bringing additional strength and depth to the current membership, and following in the footsteps of Revenue bar luminaries who have practised from chambers, who include Lord Walker of Gestingthorpe, the late Michael Hart J and the present Lord Justice Henderson.

Amanda took silk in 2015 and is widely regarded as a leading practitioner. She has a thriving advisory practice in both private client and corporate tax and is a regular and enthusiastic litigator, most recently appearing in the Supreme Court in R (on the application of De Silva and another) v Commissioners for Her Majesty’s Revenue and Customs [2017] UKSC 74. She is recognised in Chambers & Partners, Chambers & Partners High Net Worth and the Legal 500, which says: “She has a strong presence and an ability to command the room”. Amanda is the author of the International Guide to the Taxation of Trusts: The United Kingdom (IBFD) and the forthcoming second edition of Tolley’s Statutory Residence Test.

Oliver is listed in the Legal 500 as a leading junior, where he is noted to be “a very considered and approachable adviser”. Recent litigation includes acting for the Government of Gibraltar in proceedings at the European Court of Justice in Case C-192/16 Fisher v HMRC as well as trust variations and litigation in the tax tribunals and the High Court. He also has a busy advisory practice spanning the full range of tax work. He was co-author of the 9th and 10th editions of The Taxation of Charities, and writes chapters on High Net Worth taxation and taxation on divorce for Tolley’s Tax Planning.

In recent years, Amanda and Oliver have often worked together on large tax advisory matters and heavy litigation. For example, acting for the taxpayers in the Mauritian trust tax case Lee & Bunter v HMRC  [2017] UKFTT 279; for the wife in the UK’s highest recorded contested divorce case; and for the applicants in a number of judicial review challenges currently being brought against HMRC.

Amanda says: “5 Stone Buildings has an impressive pedigree and I am hugely looking forward to working alongside so many talented colleagues, helping to expand the tax side of chambers’ practice.” Oliver adds: “I am thrilled to be starting a new chapter in my career at 5 Stone Buildings at such an exciting time in chambers’ growth and development.”

We are equally looking forward to welcoming them as members of 5 Stone Buildings.