| (Webinar via Zoom) Settlor Control of Trusts: Sham, illusory trusts, and the true purpose of the trust: is there a trust? |
| Date: |
22 May 2025 (Thursday) |
| Time: |
2:30pm - 5:45pm |
| Level: |
I (Intermediate)
For delegates who have prior knowledge of the subject area |
| Language: |
English |
| Fee: |
HK$ 1,850 |
| Accreditation: |
3 CPD pts (Accredited by The Law Society of Hong Kong) |
| Ref: |
L25OT11 |
| Venue: |
Webinar Course
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Presenter's Biography:
Steven Gallagher was awarded a first class LL.B. He was called to the Bar of England and Wales in 2006. Steven teaches equity and trusts, property law, and a course on art, antiquities, cultural heritage and the law. In September 2023, Steven began teaching a new course on digital technology and law. Steven has presented over 300 continuing professional development courses for solicitors in Hong Kong on many topics associated with property. Steven's research interests include equity and the law of trusts, cultural heritage law, Chinese custom and law, and legal history. In 2023, Steven published a textbook on Digital Technology and Law. He is not a technologist.
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Objective:
Reserved power trusts are increasingly popular with settlors wishing to retain control over their property while still distancing themselves for tax planning and asset protection purposes. However, there may be issues with reserving certain powers and/or reserving too much power for themselves- including whether there is actually a trust, or the trust is "illusory", or a sham. Further issues arise when settlors adopt the role of protector for the trust, again reserving powers which may be inconsistent with a trust, and which they may exercise without a fiduciary obligation.
Trustees face consequent issues with their obligation to comply with the reserved powers and possible conflict with their fiduciary duties to the trust and the potential beneficiaries. In particular, these trusts often involve shares in an underlying company as the main subject matter of the trust. The Bartlett duty of supervision has made it common practice to include "anti-Bartlett" clauses in trusts to cancel this duty, coupled with exclusion clauses to protect the trustee from liability for not interfering in the supervision of the underlying company.
This seminar considers how a settlor may reserve control over the trust and how a trustee may mitigate their fiduciary obligations. The seminar will conclude by considering whether a settlor should retain control over a trust and whether a trustee should mitigate their fiduciary obligations.
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Outline:
- What powers may a settlor reserve?
- When will reserve powers affect the recognition of the trust;
- The power of revocation after Tasarruf Mevduati Sigorta Fonu v Merrill Lynch Bank and Trust Company (Cayman) Limited [2011] UKPC 17;
- Protectors, reserved powers and ancillary relief after Kan Lai Kwan v Poon Lok To Otto & HSBC International Trustee Ltd [2014] HKCFA 66;
- The doctrine of sham for trusts;
- Interpreting the "True Effect of the Trusts" after Mezhdunarodniy Promyshlenniy Bank and another v Pugachev [2017] EWHC 2426;
- Trusts and the doctrine of sham after Webb v Webb (Cook Islands) [2020] UKPC 22;
- How may a trustee mitigate their fiduciary obligations?
- Anti-Bartlett clauses with exclusion clauses;
- Anti-Bartlett provisions and the trustee's "irreducible core of obligations" after Zhang Hong Li v DBS Bank (HK) Ltd (2019) HKCFA 45;
- The liability of others;
- The liability of trustees outside their fiduciary obligations;
- The continued liability of trustees for their core fiduciary obligations.
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| Category: |
Others |
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Bookings & Payments
To reserve a seat, please fax the completed booking form to us. We will send out a written Booking Confirmation either by fax or by email to confirm your booking, normally within 48 hours after receiving the booking form. Payment should be made upon we send the Booking Confirmation to you, or together with the booking form if the booking is received within seven (7) days of the course. You are advised to contact us to confirm your place if you have not received the Booking Confirmation prior to the commencement of the course.
Cancellation
In case of cancellation of a booking, you must inform us in writing at least seven (7) days before the date of the course, and a full refund will be issued (less of HK$300 administration fee). Cancellation of unpaid bookings will incur a HK$300 administration fee and the cancellation will not be deemed effective until payment of such fee is received. No refunds will be given and any outstanding amounts remain payable in full if the written notice of cancellation is made less than (7) days before the date of the course.
Transfer
If you cannot attend a booked course, you must inform us in writing at least 24 hours before the commencing time of the course. You may then:
- Transfer the booking to a replacement delegate;( Not available for Individual Discount Packages)
- Transfer your booking to another course, to be held before 31 October 2025; or
- Request a credit voucher, to be used on another LexOmnibus CPD course to be held before 31 October 2025.
No attendance
Once a booking is confirmed and no written notice of cancellation is received by us within the specified time as mentioned above, if a delegate has not settled the payment for a course and fails to attend, for whatever reason, the course fee will remain payable in full. To be awarded CPD points, full attendance of all parts of the conference is required. If you arrive later, or fail to attend a course, your course fee will not be waived, refunded or a credit voucher issued.
Weather
In the event that the No.8 typhoon signal is hoisted or the Black Rain Storm warning is raised within 2.5 hours of the course or is due to be raised during the course, the course will be cancelled. In the event of cancellation due to bad weather, the course will be rescheduled or a credit note issued. No refunds will be given.
Record of Attendance
A certificate of attendance can be provided at a cost of HK$40. Alternatively, a verification of attendance in letter format, along with the original payments receipt is available, at a cost HK$40. Please apply in writing to request either a certificate or verification letter subsequent to the course.
Conference Venue
All the conferences, except webinars, will be taken place in Central. The address of the conference venue will be notified by email, and via the website.
Other Terms
- We may reschedule, vary the details of a course at any time without liability. If we cancel or reschedule the course, except due to the weather conditions indicated, a credit note will be issued.
- Any bank charges and/or expenses incurred as a result of bounced cheques shall be borne by the delegates.
- LexOmnibus will not issue an invoice for registration of a course except under special circumstances and LexOmnibus reserves the right to charge an administration fee for providing that service.
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