The origins of a European instrument to govern mutual recognition of succession across the EU first appeared in 1998. There followed an extensive Green Paper which was issued in March 2005.

On 14 October 2009 the European Commission issued a long awaited draft Regulation. However, on 15 December 2009 Jack Straw, as Minister of Justice, announced that the UK government had chosen to elect to opt out of the Regulation – it could opt-in later in the negotiations.

Quigley v Masterson [2011] EWHC 2529 is essential reading.  It adds to our knowledge on severance of joint tenancies but in so doing adds to our woes – how do we estate administrators know when severance has occurred?

Should the Court provide an interim financial award when the estranged spouse argues to be in special financial need? Does the Court have jurisdiction to permit occupation of the deceased’s property pending the making of the final award in probate action? Smith v Smith [2011] EWCA 2133 considers the position under the Inheritance (Provision for Family & Dependents) Act 1975 (IPFD).

In the recent case of Morris v Davies [2011] EWHC 1773 the deceased, Owen Davies, died unexpectedly in Paris. He was born in England and was a British Citizen but at the time of his death he was based in Belgium and weekly commuting to a place just outside Paris. His last Will was made on 30 March 1996. Which jurisdiction should deal with the validity or otherwise of his Will?

A salutary warning for those advising PRs – remember that there is no time limit on bringing a probate action. However, fortunately, the absence of advice as to the risks of anyone pursuing a claim of which the PRs had notice is subject to limitation which saw the solicitors here defeating the PRs’ claim.

A recent case considers whether an award should be made for the surviving partner of an intestate where they had lived together for five years before his death and had an 18 year relationship. It is a claim which had to be balanced between the surviving partner and the deceased’s two adult children who inherited on the deceased’s intestacy. One wonders what the order might have been should some of the proposals suggested in the Law Commission report on Intestacy have been enacted.

The recent case of Minkin v Cawdery Kaye Fireman & Taylor [2011] EWHC 177 presents all solicitors with a risk management lesson. Craft your retainer carefully, keep the client updated on costs and beware terminating your retainer without good reason and without reasonable notice to the client.

The purpose of the Excepted Estates process is to reduce the number of probate cases where a full Inheritance Tax (IHT) account (the IHT 400) has to be used. If the IHT 400 is not needed it reduces the amount of work required in the administration of the deceased’s estate. However, the IHT 205 form, which is considerably shorter, has to be submitted to the Probate Registry instead.

The Inheritance Tax (Delivery of Accounts) (Excepted Estates) (Amendment) Regulations 2011, SI2011/214 came into force on 1 March 2011. They bring into effect some tidying up of the rules but in essence their main purpose is to accommodate the transferable nil rate band.

Under the Inheritance (Provision for Family & Dependents) Act 1975 [IPFD 1975] the courts have a discretion to alter the terms of the succession to a person’s estate despite our jurisdiction’s adherence to the principle of testamentary freedom. This discretion may be exercised in favour of an eligible applicant who can show that the deceased failed to make reasonable financial provision for them.

In the recent case of Ilott v Mitson [2011] EWCA 346 the court had to consider the claim of an estranged adult child. It calls into question just what a Wills draftsman can do to minimise the risk of a testator’s Will being affected by such a claim.

The lot of the probate practitioner grows more complicated and contentious as time goes by. The validity of Wills is challenged with regularity and whilst this may mean problems for the Will draftsman it inevitably results in delay in the administration of an estate. It is also true that changes to taxation are a regular feature of our legal system and keeping abreast with the minutiae is always tricky. This blog mentions a few of the latest developments.

Most solicitors preparing Wills are happy to offer their firm’s services when it comes to the provision of executors if clients are unsure who to appoint. However, do you suggest it is compulsory? Do you inform the client of the choices open to them? Do you make it abundantly clear how you will charge for acting as an executor?

The Office of the Public Guardian (OPG) is the administrative office of the Public Guardian which role is designed to ensure that those entrusted with decision making authority on behalf of those incapable of making decisions for themselves do so appropriately without abuse and in accordance with the Mental Capacity Act 2005 (MCA 2005).

The fee structure is up for review and views are invited on the proposals contained in their Consultation Paper published on 28 February 2011. The consultation period is apparently due to end on 21 May 2011 and the initial date for the coming into effect of the changes (1 April 2011) has therefore been set back to 1 July 2011.

Happy 2011 to you all! After the festive fizz now the new year slumber but hopefully not slump. 2010 was something of a transitional year with a change in government and the beginning of a slight improvement in the economy but 2011 is the beginning of the Coalition’s economic deep freeze which will start in earnest to-day with the increase in VAT to 20%.

As the historians say you cannot understand the present without understanding the past I thought it was timely to review some of the ‘highlights’ of 2010.

While I have been off the air I have been busy with a number of conferences, consultations and considerations. What has become all too apparent from recent events is the inexorable rise in contentious probate. Is it time for all non-contentious probate practitioners to consider becoming litigators or at least understand what is involved in the processes and procedures of litigation and mediation?

HM Revenue and Customs (HMRC) have published 3 further toolkits to help agents avoid common errors when completing clients’ returns.

The toolkits are downloadable from http://www.hmrc.gov.uk/agents/prereturn-support-agents.htm, and cover:

• VAT Input Tax
• Inheritance Tax
• Expenses and benefits from employment

The valuation of real property for probate purposes has been under the spot light for some time. Practitioners are rightly concerned to do what is necessary to obtain an open market value of a property in an estate in accordance with s.160 IHTA 1984. However, the stance taken by HMRC over the question of valuation is causing a good many practitioners to question the number and type of valuations required to satisfy HMRC and demonstrate the correct value has been chosen for Inheritance Tax purposes.

The recent tribunal hearing in the estate of Raymond Francis Hewitt Hobart deceased is a welcome win for the taxpayer:

Most firms conducting probate work continue to be busy despite the recession although converting enquiries into confirmed cases is increasingly challenging as personal representatives look keenly at prices and levels of service. What follows represents recent additional challenges in this area:

I was recently asked to advise a farmer on the prospect of retaining APR/BPR for IHT in the event of him agreeing to a Wind Turbine or two on his land. It certainly proved to be an interesting question - no answer, sadly, was to be found blowing in the wind on the Isle of Wight!

Are special tax reliefs for furnished holiday lettings likely to become a thing of the past from 6 April 2010 in the light of the release on Budget Day of HMRC’s technical note sounding the demise of the legislative code for income tax and CGT contained in Income Tax (Trading & Other Income) Act 2005?