Family provision claims

Family provision claims—preliminary issues

Before the court can exercise jurisdiction it must be proved that the deceased died domiciled in England and Wales. The question of domicile can be a complex issue but broadly, it will depend on the deceased’s:

•
domicile of origin
•
domicile of choice: this does not replace the domicile of origin but may suspend it

Where the deceased’s domicile is contended, it is for the claimant to prove domicile on the balance of probabilities. Proof of death is also an obvious prerequisite of an application and the burden of proof of that also rests with the claimant.

Proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) in the High Court are assigned to either the Chancery Division or Family Division, depending on the claimant's choice. Proceedings can also be issued in the County Court.

See Practice Note: Family provision claims—preliminary issues.

Domicile and habitual residence

There are significant differences between domicile and habitual residence: habitual residence is generally a question of fact whereas domicile is a legal concept. There are also differences in

To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial.

TAKE A FREE TRIAL

Latest Private Client News

Market value, distributions and notional transactions—key SDLT lessons from Tower One St George Wharf Ltd v HMRC

Tax analysis: In Tower One St George Wharf Ltd v HMRC, the Court of Appeal considered the basis on which stamp duty land tax (SDLT) should be assessed and whether that resulted in SDLT being paid on the market value, the actual consideration paid, or on some other basis for a complex transaction within a corporate group. The taxpayer argued that the ‘Case 3’ exception under section 54(4) of the Finance Act 2003 (FA 2003) applied, which would result in SDLT being charged on the actual consideration. HMRC argued that the exception did not apply, which would result in SDLT being paid on the market value of the property. Alternatively, HMRC argued that if the exception did apply then the anti-avoidance provisions at section 75A FA 2003 applied, potentially resulting in an even higher SDLT charge. The Court of Appeal held that although the Case 3 exception applied, the anti-avoidance provision in FA 2003, s 75A also applied. This resulted in SDLT being assessed on an aggregate amount that was even higher than the property's market value (although HMRC did not seek to increase its assessment beyond market value). Therefore, the appeal was dismissed. As explained by Jon Stevens, partner, and Rory Clarke, solicitor, at DWF Law LLP, this decision deals with the interaction of a number of complex SDLT provisions and clarifies the SDLT provisions relating to transfers to connected companies and the SDLT anti-avoidance provisions, with implications for corporate structuring and tax planning.

Landmark Privy Council judgment clarifies the test for fraudulent misrepresentation

Private Client analysis: In Credit Suisse Life (Bermuda) Ltd v Ivanishvili [2025] UKPC 53, the Privy Council considered the requirements of a claim in fraudulent misrepresentation. Significantly, the Board held that claimants do not need to prove their conscious awareness or understanding of a representation, so long as they can show that the representation induced them to enter the contract. Written by James Smith, barrister at Outer Temple Chambers.

Deadline of 31 December 2025 for trusts to register under AEOI regulations

The CIOT and ATT have released reminders of the deadline of 31 December 2025 for trusts to register under AEOI regulations.

Finance Bill 2026–Registration of tax advisers

Tax analysis: Legislation proposed by the government in Part 7 of the Finance Bill 2026 will mandate that tax advisers register with HMRC. The registration scheme is designed to address inconsistencies across HMRC’s current services, to ensure minimum standards among advisers and reduce the presence of so-called ‘bad actors’ in the sector. Any individual or organisation offering tax advice, which is defined broadly, must register with HMRC. Failure to register can lead to compliance notices giving an opportunity to register, fines and orders ultimately preventing future registration indefinitely. Exemptions to registration include responding to requests for information from HMRC or interacting with HMRC in relation to an appeal to the tribunal. Written by Gideon Sanitt, a partner in the litigation and dispute resolution team at Macfarlanes LLP, and Joshua Rutt, an associate in the litigation and dispute resolution team at Macfarlanes LLP.