Entitlement to the estate

Entitlement under a Will

Where the deceased left a valid Will, the executors must identify which beneficiaries are entitled to which property. Unless there is a contrary intention in the Will, then as to:

  1. identifying the property, the Will speaks and takes effect as if it had been executed immediately before the death of the testator

  2. identifying the beneficiaries, the Will speaks from the date of execution

A person may be disqualified from taking under a Will if:

  1. they have induced by undue influence or fraud the making of the gift to them

  2. by their criminal act they have caused the death of the testator

  3. they or their spouse or civil partner have witnessed the Will (subject to exceptions)

If a person lacks or is suspected to lack the capacity to deal with a legacy under a Will it might be wise to consider applying to the Court of Protection for the appointment of a deputy.

A beneficiary must survive the testator or fulfil a condition, if appropriate, in order to take a gift under that testator's Will. If they predecease,

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FTT holds that OIGs and AIPs arising in offshore protected trusts are not protected foreign source income (Louwman v Revenue and Customs Commissioners)

Private Client analysis: The case of Louwman v Revenue and Customs concerned Ms Louwman, a UK resident non-domiciled taxpayer who had set up offshore protected property trusts on 7 March 2017, just prior to the implementation of the deemed domicile regime on 6 April 2017. Ms Louwman sought to shield income and gains in those trusts from taxation after she became deemed domiciled for the tax year commencing 6 April 2018, on the basis that the trusts were offshore protected property trusts and the income and gains in those trusts would not be attributed to her on an arising basis. HMRC assessed Ms Louwman to income tax on the basis that offshore income gains (OIGs) and accrued income profits (AIPs) that had arisen in the offshore protected trusts were subject to income tax on an arising basis. Ms Louwman resisted the assessments on the basis that these items of income were ‘protected foreign source income’. The matter went to the irst-tier tribunal for determination and the tribunal considered that the items of income were not ‘protected foreign source income’ on the basis that they could not be said to have a source, and particularly a foreign source. The tribunal therefore considered that they should be subject to income tax. The tribunal also considered that it was not appropriate to take a rectifying interpretation of the definition of ‘protected foreign source income’ in section 721A of the Income Tax Act 2007 (ITA 2007) even though OIGs and AIPs may have been omitted from the definition of protected foreign source income by the inadvertence of Parliament. Written by Ben Symons, barrister at Old Square Tax Chambers.

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