Costs in Contentious & Non-contentious Probate & IPFD Act 1975 - Part 2

Following on from Part 1 (published in December 2009), Part 2 lists more precedents and principles to help recover the maximum amount of costs.

© Amy Berry - Pump Court Chambers

The New Remittance Rules (Part 2)

Much comment has been made on the changes to the remittance rules introduced in Finance Act 2008. The £30,000 remittance basis charge probably grabbed most of the headlines. However the changes to what constitutes a remittance may actually be more important for most clients who are taxed on the remittance basis.

© Jo Summers - PWT Advice Ltd

Costs in Contentious & Non-contentious Probate & IPFD Act 1975 - Part 1

1.   The Civil Procedure Rules (CPR) set out the practice and procedure to be followed in the Courts [CPR 2.1]. Non-contentious and common form probate proceedings are exceptions to this general rule as the CPRs are not binding in this area [CPR 2.1(2) & White Book vol 2: 12.8]. Section 127 of the Supreme Court Act 1981 is the enabling Act for non-contentious proceedings and the Non-Contentious Probate Rules 1987 (SI 1987/2024) were made in exercise of this power.

© Amy Berry - 3 Pump Court

The New Remittance Rules (Part 1)

Certain individuals, mainly those who are resident but not domiciled in the UK, are entitled to pay tax on the remittance basis. This article looks at the recent changes to the remittance basis of taxation introduced in Finance Act 2008.

© Jo Summers - PWT Advice Ltd

Provision under the Inheritance Act for Spouses - Update

A deceased’s spouse is in a unique position under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the Act’) being entitled to the higher level of provision under s 1(2) namely, “such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance”.

© Leslie Samuels - Pump Court Chambers

Drafting Clauses into Lasting Powers of Attorney

Practitioners are often faced with clients wishing to add that ‘particular something’ making their LPA special. Special is fine, provided it works and you don’t find yourself in court having to explain your drafting. The little case law that has emerged, by way of drafting guidance, shows a need for sensitivity of clients needs with an understanding of the completion notes.

© Craig Ward - Writer Speaker Mediator - Lawtalks

Tackling insolvent estates

As the recession bites more and more estates will be insolvent. Insolvent estates present significant risks for the probate practitioner. However, if the risks are understood and managed there is no reason that there should not also be significant opportunities.

© Richard Dew - 10 Old Square

Abuse and mentally incapable adults

Section 44 of the Mental Capacity Act 2005 (MCA) provides specific legislation for protecting mentally incapable adults against ill treatment and wilful neglect.

- Criminal offences apply to anyone who has the care of a person who lacks mental capacity.
- This could be Attorneys, Deputies or Carers.
- Prosecutions result in a fine and/or a sentence of imprisonment of up to five years.

© Craig Ward - Writer Speaker Mediator

Where are we on domicile?

Domicile status is crucial in determining a client’s liability to UK taxation. Although UK tax legislation looks at location of assets and residence, domicile can be the determining factor, particularly for inheritance tax. However it may not be easy to decide if your client is domiciled in the UK.

For something that is so important, most clients are surprised to learn that there is no statutory definition of domicile. There are also indications that HM Revenue & Customs (‘HMRC’) may be more willing to challenge what clients say about their domicile.

© Jo Summers - PWT Advice Ltd

Transferable nil rate band vs Nil rate band discretionary trust

There is now a balance to be struck in deciding whether to include a nil rate band discretionary trust in a Will or to rely instead in the transferable nil rate band. There are still advantages to a nil rate band discretionary trust which are considered briefly below.

© Eason Rajah - Ten Old Square

Revised Lasting Powers of Attorney (LPA) Forms

Forms come and go, surviving changes and revisions. The Enduring Powers of Attorney (EPA) forms first seen in March 1986, underwent 3 changes during their lifetime, including a Welsh version in March 2000. With the introduction of the new LPA forms on 1st October 2009, these would have out-survived the first EPA form revision by 2 months. The new LPA forms are shorter, they contain completion notes, and are overall colourful.

© Craig Ward - Writer Speaker Mediator

Where are we on tax residence?

UK residence status is crucial in determining a client’s liability to UK taxation. Although UK tax legislation also looks at domicile and location of assets, residence is the primary basis for many UK taxes.

For something that is so important, most clients are surprised to learn that there is no single statutory definition of residence. What is worse, the recent HMRC guidance may actually have made matters less clear.

© Jo Summers - PWT Advice Ltd

Claims under the IPFD Act 1975 - Provision for Adult Step-Children

As our society develops increasingly complex webs of family relationships, and the idea of a “normal” family unit becomes more and more unusual, it is important to see how flexible the now 34 year old Act is to meet the needs of the 21st century applicant. This article tries to draw together some of the thinking which applies to claims by adult stepchildren.

© Annie Ward - 3 Pump Court

Family Partnerships

© Jo Summers - PWT Advice Ltd

Re P - Statutory Wills

Many people believe they act in someone's best interests; section 4 Mental Capacity Act 2005 (MCA), effective from October 2007, now brings this principle into law. With this new arrival, the probate world has also changed following the case of Re P [2009] EWHC 163 (Ch); [2009] WLR (D) 41. Here the interesting principles established over 25 years ago by Re D(J) [1982] Ch 237 have been swept away.

© Craig Ward - Writer Speaker Mediator

Inheritance by Proprietary Estoppel

The impact of the decision of the House of Lords in Thorner v Major and others [2009] UKHL 18, [2009] 1 WLR 776

Key issue: will a nod and a wink suffice?

Answer: Yes, in the right context

© Giles Harrap - Pump Court Chambers

Current issues in trusts and probate

Ten Old Square is delighted to have been asked to provide regular contributions to this excellent web site. Over the forthcoming months we will be posting articles on a range of topics, including lasting powers of attorney, costs in contentious probate, insolvent estates and sham trusts. In our first article, Richard Dew, asks what are the current issues facing the trusts and probate practitioner.

© Richard Dew - Ten Old Square

Why mediate inheritance disputes?

Inheritance disputes are tailor made for mediation. I say this from experience and observation. All the 30 or so inheritance mediations I have conducted as mediator have settled. This is a settlement rate higher than normal. And not because of any brilliance of mine! These disputes settle because they are especially suited for mediation. Why?

© Stephen Fielding

Capacity to Litigate

Amendments to the Civil Procedure Rules (CPR) came into force on 1st October 2007 arising out of the bringing into force of the Mental Capacity Act 2005 on the same day. CPR Part 21 contains special provisions which apply in proceedings involving children and protected parties and sets out how a person becomes a litigation friend.

© Caroline Hartley