Just because it looks like a transaction to defraud does not mean it is

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The recipients said that the gifts were part of inheritance and tax planning steps taken on advice and were not motivated by any business difficulties or intention to take assets out of the reach of creditors.

The ICCJ worked through the facts surrounding the transactions in 2009 and commented that, whilst the circumstances gave rise to the suggestion that assets had been put beyond the reach of creditors, he ultimately found the Trustees had failed, on a balance of probabilities to establish that any of the transactions were, in fact, entered into for the purpose of putting assets beyond the reach of creditors.

This case again highlights the difficulty of proving intention. There are an increasing number of reported decisions on Section 423 claims and they are attractive as you do not need to prove insolvency and have a longer challenge period, but just because something looks like a transaction to defraud does not mean it is and you have to prove intention.

Tate & Hopkirk v Farrell and others [2019] EWHC 119 (Ch)
 

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