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:

  1. domicile of origin

  2. 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

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All in? Court confirms when a settlement is 'made' for the purposes of excluded property (Accuro Trust (Switzerland) SA v The Commissioners for HMRC)

Private Client analysis: This case considered the meaning of 'relevant property' under the settlements regime of the Inheritance Tax Act 1984 (IHTA 1984) and, in particular, the time at which this definition is to be tested. The question arose as to whether the trustees of an offshore trust established by a non-UK domiciled settlor were subject to the UK settlements regime in respect of property added to the trust after the settlor became deemed domiciled in the UK, or whether they were exempt from such charges as the trust consisted solely of excluded property. The First-tier Tribunal (FTT) held that whether trust property is excluded property is based on the status of the trust at the time that it was established, not at the time that the property in question was added to the settlement. As a result, the trust in this case did consist solely of excluded property and no inheritance tax (IHT) charges arose as a result of either the ten-year anniversary or capital distributions. The FTT was also asked to consider whether their jurisdiction was appellate, or supervisory only. The FTT held that, while their jurisdiction was supervisory, the questions raised by the trustees were relevant in establishing whether HMRC had acted reasonably and that the outcome (ie that the paid IHT should be refunded and that no further IHT was due) would be the same in either case. Written by Katherine Willmott, senior associate solicitor at Foot Anstey LLP.

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