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Lynne Counsell#1033

Lynne Counsell

Barrister, Addington Chambers
Lynne has been in traditional Chancery practice for some thirty years, specialising in probate matters, construction of wills and trusts and also financial services and drafting.

Lynne was for some years counsel for Tower Hamlets, representing them on landlord and tenant cases and counsel for Bedford Building Society representing it on mortgage cases.

Lynne has written or updated over fifty books, including writing the initial volume of Atkin’s Court Forms “Financial Services” and updating Halsbury’s Laws on Injunctions. Lynne was also co-author of two editions of “Insider Trading” and co-editor and one of the writers of “Chancery Practice and Procedure.”

Articles include “Marketing of Investments” for the Law Society Gazette and “The Doctrine of Mutual Wills” for the Trust Quarterly Review. Lynne won one of the few cases on mutual wills in the last fifty years – Charles v Fraser (2010).

Lynne has drafted the standard unit trust for the government of Nigeria, the rules and related documentation for various building societies and clubs, shareholder agreements, company takeovers compliance documentation for certain banks as well as wills and trusts.

Lynne was awarded the 2017 Corporate international Magazine Global Award – “Investment Contracts Barrister of the Year in England”.
Contributed to

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A charity wishes to assign the leasehold title to a property but, out of the five charity trustees named as registered proprietors of the property, three have died and one has retired. New trustees are running the charity but no record can be found of their formal appointment. What needs to be done in order to transfer the legal estate of the property? If the new trustees need to be made parties to the transfer and evidence of their appointment cannot be found, how should this be dealt with? (There is a restriction on title re: dispositions under section 37(2) of the Charities Act 1993).
A charity wishes to assign the leasehold title to a property but, out of the five charity trustees named as registered proprietors of the property, three have died and one has retired. New trustees are running the charity but no record can be found of their formal appointment. What needs to be done in order to transfer the legal estate of the property? If the new trustees need to be made parties to the transfer and evidence of their appointment cannot be found, how should this be dealt with? (There is a restriction on title re: dispositions under section 37(2) of the Charities Act 1993).
Q&As
A couple (A and B) made Wills including a life interest trust in their property and they correctly severed the joint tenancy. A and B then sold and purchased a new property intending to own it as tenants in common, unaware that the conveyancers registered it as joint tenants. B has died and A has lost capacity and has moved into a care home. A and B's children, as attorneys for A (and executors of B's estate), have sold the property, without realising that the property was held as joint tenants. Is proof of A and B's intention to own the property as tenants in common sufficient to counter the otherwise automatic passing of B's interest to A by survivorship? Is the 50% of the property proceeds which was attributed to B's interest available to the local authority in relation to A's care home fees? What remedy might there be?
A couple (A and B) made Wills including a life interest trust in their property and they correctly severed the joint tenancy. A and B then sold and purchased a new property intending to own it as tenants in common, unaware that the conveyancers registered it as joint tenants. B has died and A has lost capacity and has moved into a care home. A and B's children, as attorneys for A (and executors of B's estate), have sold the property, without realising that the property was held as joint tenants. Is proof of A and B's intention to own the property as tenants in common sufficient to counter the otherwise automatic passing of B's interest to A by survivorship? Is the 50% of the property proceeds which was attributed to B's interest available to the local authority in relation to A's care home fees? What remedy might there be?
Q&As
A deceased left his estate to a lifetime discretionary trust. The executors of his estate were his spouse and children. The trustees of his lifetime trust were them and a trust company, which has since been taken over by another. He died some time ago and the spouse alone took out the Grant. She did not understand the terms of the Will and believed the estate passed to her. His assets (his interest in their property held as tenants in common) and bank accounts were transferred to her, not the trust. What steps need to be taken to resolve this now?
A deceased left his estate to a lifetime discretionary trust. The executors of his estate were his spouse and children. The trustees of his lifetime trust were them and a trust company, which has since been taken over by another. He died some time ago and the spouse alone took out the Grant. She did not understand the terms of the Will and believed the estate passed to her. His assets (his interest in their property held as tenants in common) and bank accounts were transferred to her, not the trust. What steps need to be taken to resolve this now?
Q&As
A deceased's Will created a life interest in their share of a property for their partner, with remainder going to the deceased's child. The property has been sold within two years of death and the life tenant and remainderman have agreed to a split of the proceeds. Would a variation of the Will or a termination (partition) of the trust be the best option, bearing in mind the tax consequences?
A deceased's Will created a life interest in their share of a property for their partner, with remainder going to the deceased's child. The property has been sold within two years of death and the life tenant and remainderman have agreed to a split of the proceeds. Would a variation of the Will or a termination (partition) of the trust be the best option, bearing in mind the tax consequences?
Q&As
A died 10 years ago. His executors are only now dealing with his estate. A’s Will leaves legacies of £4,000 to each executor. The residue passes to A’s surviving spouse. The legacies to the executors have not been paid and the executors have now decided to disclaim the legacies. Had the executors made written disclaimers within two years of A’s death, we note that the legacies would have fallen into residue and spouse exemption would have been available given that the residue passes to A’s spouse. However, as more than two years have passed since A’s death, we note that the disclaimed legacies will be treated as potentially exempt transfers by the executors. Is this correct? Will the disclaimed legacies still use up some of A’s nil rate band?
A died 10 years ago. His executors are only now dealing with his estate. A’s Will leaves legacies of £4,000 to each executor. The residue passes to A’s surviving spouse. The legacies to the executors have not been paid and the executors have now decided to disclaim the legacies. Had the executors made written disclaimers within two years of A’s death, we note that the legacies would have fallen into residue and spouse exemption would have been available given that the residue passes to A’s spouse. However, as more than two years have passed since A’s death, we note that the disclaimed legacies will be treated as potentially exempt transfers by the executors. Is this correct? Will the disclaimed legacies still use up some of A’s nil rate band?
Q&As
A discretionary trust is set up with one adult and two minor beneficiaries. The trustee will currently have to deduct 45% tax on the income before paying the beneficiaries and the adult beneficiary will have to complete a tax return and claim any excess tax they have paid. To avoid the lengthy administration process of completing tax returns, can the trustee create a revocable life interest trust for all three beneficiaries and, if so, does the trust still have to pay tax at 45% or 20%?
A discretionary trust is set up with one adult and two minor beneficiaries. The trustee will currently have to deduct 45% tax on the income before paying the beneficiaries and the adult beneficiary will have to complete a tax return and claim any excess tax they have paid. To avoid the lengthy administration process of completing tax returns, can the trustee create a revocable life interest trust for all three beneficiaries and, if so, does the trust still have to pay tax at 45% or 20%?
Q&As
A is named as sole executor with the provision that, if A is unable or unwilling to act, then B should be appointed to act instead. A has lost capacity but has attorneys appointed under a valid financial lasting power of attorney. In these circumstances, can A’s attorneys renounce probate on A’s behalf, leaving B to step in to handle the administration of the estate?
A is named as sole executor with the provision that, if A is unable or unwilling to act, then B should be appointed to act instead. A has lost capacity but has attorneys appointed under a valid financial lasting power of attorney. In these circumstances, can A’s attorneys renounce probate on A’s behalf, leaving B to step in to handle the administration of the estate?
Q&As
A life interest Will trust has ended and the trust fund comprises a flat worth £325,000 and cash of £200,000. There are two remaindermen, one of whom is also one of two trustees and would like the flat transferred. The other remainderman agrees this can be done and will take the cash, as long as money is paid to equalise the value each receives. However, no cash is available to equalise and the idea of a charge over the property has been dismissed. Both remaindermen would accept entering into an IOU. What issues does this option raise for the trustees and the beneficiaries?
A life interest Will trust has ended and the trust fund comprises a flat worth £325,000 and cash of £200,000. There are two remaindermen, one of whom is also one of two trustees and would like the flat transferred. The other remainderman agrees this can be done and will take the cash, as long as money is paid to equalise the value each receives. However, no cash is available to equalise and the idea of a charge over the property has been dismissed. Both remaindermen would accept entering into an IOU. What issues does this option raise for the trustees and the beneficiaries?
Q&As
A partner of a law firm is appointed by order of the court as deputy for an individual who lacks capacity (P). As part of managing P’s affairs, the partner and another solicitor of the same firm are appointed by order of the court to act as trustees in the sale of P’s property (the trustee order). An offer is received on the sale of P’s property but P subsequently dies prior to exchange. P owned the property as tenants in common with his wife. P’s wife predeceased him and her share of the property passed in accordance with the terms of her Will. Did the trustee order terminate automatically upon P’s death, or does it remain effectual so as to enable to trustees to proceed with the sale of the property?
A partner of a law firm is appointed by order of the court as deputy for an individual who lacks capacity (P). As part of managing P’s affairs, the partner and another solicitor of the same firm are appointed by order of the court to act as trustees in the sale of P’s property (the trustee order). An offer is received on the sale of P’s property but P subsequently dies prior to exchange. P owned the property as tenants in common with his wife. P’s wife predeceased him and her share of the property passed in accordance with the terms of her Will. Did the trustee order terminate automatically upon P’s death, or does it remain effectual so as to enable to trustees to proceed with the sale of the property?
Q&As
A property is jointly owned by husband and wife, with the wife acting as LPA attorney for her mentally incapacitated husband. On sale of the property, can the wife give valid receipt for the purchase monies and sign the transfer on behalf of herself and her husband? There is a standard Form A restriction on the title.
A property is jointly owned by husband and wife, with the wife acting as LPA attorney for her mentally incapacitated husband. On sale of the property, can the wife give valid receipt for the purchase monies and sign the transfer on behalf of herself and her husband? There is a standard Form A restriction on the title.
Q&As
A property is left by Will on a life interest trust. Can the remainderman’s interest be satisfied by an appropriation of cash and is there a time limit for doing so? Does the remainderman’s interest constitute a major interest in a dwelling for the purposes of the stamp duty land tax higher rates on additional dwellings rules?
A property is left by Will on a life interest trust. Can the remainderman’s interest be satisfied by an appropriation of cash and is there a time limit for doing so? Does the remainderman’s interest constitute a major interest in a dwelling for the purposes of the stamp duty land tax higher rates on additional dwellings rules?
Q&As
A property was settled on trust in 1973 by Mr and Mrs X for Mrs X for life and thereafter for their two daughters in equal shares. One daughter has children, one does not. Mrs X remains alive. All parties wish to add the grandsons as beneficiaries but there is no express power in the trust deed itself. Can the three beneficiaries together consent to the amendment of the trust deed without the court's assistance under the rule in Saunders v Vautier despite it being a trust of land?
A property was settled on trust in 1973 by Mr and Mrs X for Mrs X for life and thereafter for their two daughters in equal shares. One daughter has children, one does not. Mrs X remains alive. All parties wish to add the grandsons as beneficiaries but there is no express power in the trust deed itself. Can the three beneficiaries together consent to the amendment of the trust deed without the court's assistance under the rule in Saunders v Vautier despite it being a trust of land?
Q&As
A UK residential individual C is setting up a French company, which in turn will purchase a French holiday home. He intends that the company will be held by himself as to 10% and by his children 90%. The shareholders will transfer funds to the company to allow it to buy the property. C intends to make a gift to his children of 90% of the purchase price in the UK, which they will then transfer to the company in France to buy the property. C will be making a potentially exempt transfer cash in respect of the 90% of the purchase price. Will he be caught out by the pre-owned assets tax rules? He will not be owning land directly, as the property will be owned by the French company
A UK residential individual C is setting up a French company, which in turn will purchase a French holiday home. He intends that the company will be held by himself as to 10% and by his children 90%. The shareholders will transfer funds to the company to allow it to buy the property. C intends to make a gift to his children of 90% of the purchase price in the UK, which they will then transfer to the company in France to buy the property. C will be making a potentially exempt transfer cash in respect of the 90% of the purchase price. Will he be caught out by the pre-owned assets tax rules? He will not be owning land directly, as the property will be owned by the French company
Q&As
A Will appoints various persons as executors and trustees and gives the executors power to appoint new trustees of the Will. It does not include wording providing that only executors proving the Will shall act as trustees and exercise the power of appointment. Some of the executors have decided not to prove the Will and also intend to disclaim their role as trustees. Are they also able to disclaim their powers of appointment of trustees (so that the trustees of the Will Trust can thereafter exercise the powers of appointment under section 36 of the Trustee Act 1925 on the basis that there is no-one else able and willing to act)?
A Will appoints various persons as executors and trustees and gives the executors power to appoint new trustees of the Will. It does not include wording providing that only executors proving the Will shall act as trustees and exercise the power of appointment. Some of the executors have decided not to prove the Will and also intend to disclaim their role as trustees. Are they also able to disclaim their powers of appointment of trustees (so that the trustees of the Will Trust can thereafter exercise the powers of appointment under section 36 of the Trustee Act 1925 on the basis that there is no-one else able and willing to act)?
Q&As
A Will contains a standard Nil Rate Band Discretionary Trust clause leaving 'the largest sum of cash which could be given on the trusts of this clause without inheritance tax becoming due in respect of the transfer of the value of my estate I am deemed to make immediately before my death'. There is farmland qualifying for 100% agricultural property relief (APR) in the estate. If this farmland is appropriated to satisfy the legacy, as the Will allows, is it the open market value only that is taken into account when making the transfer or the value reduced by the APR? If so, would the APR be diluted by the effect of section 39A of the Inheritance Tax Act 1984?
A Will contains a standard Nil Rate Band Discretionary Trust clause leaving 'the largest sum of cash which could be given on the trusts of this clause without inheritance tax becoming due in respect of the transfer of the value of my estate I am deemed to make immediately before my death'. There is farmland qualifying for 100% agricultural property relief (APR) in the estate. If this farmland is appropriated to satisfy the legacy, as the Will allows, is it the open market value only that is taken into account when making the transfer or the value reduced by the APR? If so, would the APR be diluted by the effect of section 39A of the Inheritance Tax Act 1984?
Q&As
A Will has a plan attached which delineates the parcels of land to be assented to beneficiaries. However, the plan contains an error in that one of the buildings is bisected by a boundary line in the plan. What can be done to remedy the error?
A Will has a plan attached which delineates the parcels of land to be assented to beneficiaries. However, the plan contains an error in that one of the buildings is bisected by a boundary line in the plan. What can be done to remedy the error?
Q&As
Are there any restrictions or limitations on the use of automatic renewal provisions in business-to-business and business-to-consumer contracts?
Are there any restrictions or limitations on the use of automatic renewal provisions in business-to-business and business-to-consumer contracts?
Q&As
Can a company be a discretionary beneficiary under a discretionary trust?
Can a company be a discretionary beneficiary under a discretionary trust?
Q&As
Can a company restrict a consumer from going directly to subcontractors that the company uses in order to supply the goods (in other words, can the consumer cut out the company and get the goods directly from a subcontractor)?
Can a company restrict a consumer from going directly to subcontractors that the company uses in order to supply the goods (in other words, can the consumer cut out the company and get the goods directly from a subcontractor)?
Q&As
Can a consumer contract out of, or waive their right to, a cooling-off period under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, SI 2013/3134?
Can a consumer contract out of, or waive their right to, a cooling-off period under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, SI 2013/3134?
Q&As
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Practice Areas

Panels

  • Case Analysis Panel
  • Contributing Author
  • Q&A Panel

Qualified Year

  • 2006

Membership

  • Chancery Bar Association

Education

  • History BA (Hons) 2:1 Bedford College. University of London
  • Diploma in Law City University, London
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