LAWYER'S OPINION
A Tale of Two Cities
As we all head off on our holidays the thoughts of many lawyers turn to the legal systems of other countries. Those heading to France, or many other civil law countries, will (of course) know that their concepts of administration of estates are very far removed from our own. The most striking example is that when a person dies those entitled are immediately entitled, with no interim period to administer the estate, discharge the debts and so on, at least not as we common lawyers would understand it.
© Richard Dew - Ten Old Square
When do Offshore Trustees pay UK Capital Gains Tax?
Introduction
Offshore trustees usually take the view that they are outside the scope of UK capital gains tax (‘CGT’). Whilst this is correct, this does not mean that non-resident trustees can ignore CGT completely. This article contains a brief summary of the CGT issues non-resident trustees should bear in mind.
© Jo Summers - PWT Advice Ltd
Non-Dom dies domiciled in England for 1975 Act claim
In Holliday v Musa [2010] WTLR 839 the Court of Appeal upheld the decision of a trial judge that a man who was born in Cyprus, left for England in 1958 and signed a DOM 1 Form stating to the Inland Revenue that he considered he was domiciled in North Cyprus in 1997, died domiciled in England in 2006 so enabling a claim against his estate to be brought under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) by his cohabitant.
© Giles Harrap - 3 Pump Court Chambers
Cohabitants and the IPFD
When is a Claimant living “in the same household” as and “as the husband or wife” (or civil partner) of the deceased for the purposes of the Inheritance (Provision for Family and Dependants) Act 1975?
In Lindop v Agus, Bass & Hedley [2010] 1 FLR 631; [2009] EWHC 1795 HHJ Behrens, sitting as a deputy judge of the Chancery Division, conducted a timely, comprehensive review of recent authority on this point which is increasingly in issue where relationships develop and change in quality in the years before the death of the deceased.
© Mark Dubbery - 3 Pump Court Chambers
Passing on the benefit: proving that one charity is the same as another
In the recent decision of Nicholas Strauss QC (sitting as a deputy judge of the High Court) in TWM Trust Corporation Ltd v Attorney General and others [2010] All ER (D) 139 (May), the executors of an estate asked the Court to determine whether a gift from a residuary estate to a named charity that appeared to have ceased to exist could be passed to an alternative organisation or if it should go to unknown intestate beneficiaries.
© Naomi Winston - Ten Old Square
When do Offshore Trustees pay UK Income Tax?
Introduction
Offshore trustees are often surprised to learn that they can be liable to UK income tax. This is the case whether the non-resident trust is a family/personal settlement or an offshore pension (only UK registered pensions are exempt from income tax). This article contains a brief summary of the income tax issues non-resident trustees should bear in mind.
© Jo Summers - PWT Advice Ltd
Removing Personal Representatives
The recent decision of Newey J in Re Kershaw, Kershaw v. Micklethwaite [2010] EWHC 506 (Ch) contains important guidance concerning the principles upon which the Court should exercise its jurisdiction to remove personal representatives.
© Toby Boutle - Ten Old Square
Courts draw the line in claims by adult children under IPFD Act 1975
In H v M, The Blue Cross and others [2010] WTLR 193 a High Court Judge overturned the decision of a District Judge to order provision under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) in a case where an adult child could demonstrate only need, available resources in the estate and that the Defendant beneficiaries, being charities, were owed no relevant obligation.
© Giles Harrap - 3 Pump Court Chambers
Tracing the Missing Beneficiary - Heir Locators & Contingency Fees
Background
The need to locate a missing beneficiary is a problem which frequently faces those involved in administration of estates, whether the deceased left a valid will or died intestate.
© Georgia Bedworth - Ten Old Square
How should non-residents own UK property?
If you are advising non-resident clients on buying a property here, you need to know what UK tax issues can arise. Many clients are surprised to hear they may have to pay UK tax, even if they do not live in the UK. This article is intended to give a brief overview of the different potential tax charges facing non-resident owners of UK property.
© Jo Summers - PWT Advice Ltd
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 - 3 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 Chambers
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 - 3 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 Chambers
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 - 3 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 - 3 Pump Court Chambers
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 - 3 Pump Court Chambers
