It is well recognised that in the context of certain types of banking transactions a presumption of undue influence can arise. An example of this would be where an individual is agreeing to charge a property which they own in order to secure the debts of their spouse. The question of whether a lack of independent legal advice invalidated a guarantee was considered recently in a case before the Chief Justice: Clarien Bank v E Kempe.
It is always reassuring when a decision of the court validates and confirms the adage that the law is largely just “common sense with knobs on” (in the words of Lord Sumption).
The loser in a recent injunction case wanted to be able to rely upon privileged information contained in the bill of costs submitted by the winner, and to use that information against the winner in the arbitration proceedings that were pending between the parties. This is pretty outrageous, and one would readily expect that this would not be permissible. It isn’t.
Bermuda has many resourceful and hard-working business proprietors. Each one loves the enterprise he or she has built and for many, the hope is that it will continue many years and possibly many generations into the future. The successful continuation of the business after the death of the proprietor is not, however, a foregone conclusion and if this is a paramount goal of the proprietor, estate planning will be required.
The specific issues that arise in the context of succession to a family business will depend, in the first instance, on the form of that business. Different considerations arise in the context of a sole proprietorship than a limited liability company or partnership, but regardless of the form of business, it is essential to address the future. This article will deal solely with sole proprietorships and I will consider issues related to succession in the context of a limited liability company at a later time.
The recent Budget announcement by the Bermuda government included one significant policy proposal which has the power to provide a welcome stimulus to the Bermuda economy over the course of the coming years. The Premier, also Minister of Finance, David Burt, indicated that a relaxation of the business ownership ‘60:40 rule’ was to be implemented to boost investment by non-Bermudians.
For those not familiar with this rule, Bermuda companies fall into two principal categories:
(i) local companies, which are usually incorporated by Bermudians to trade primarily in Bermuda; and
(ii) exempted companies, which are usually incorporated by non-Bermudians for the purpose of conducting business outside of Bermuda.