Distributions from a discretionary Will trust If settled property is distributed to beneficiaries from a discretionary Will trust within two years of the date of death on appropriate terms, section 144 of the Inheritance Tax Act 1984 (IHTA 1984) confers inheritance tax (IHT) relief so that the relevant property regime will not apply. This means that: • distributions from the trust within this two-year period are not subject to the exit charge under IHTA 1984, s 65 which would otherwise arise, and • the IHT legislation has effect as if the Will had provided that on the testator’s death the property should be held as it is held after the distribution qualifying for the relief If

Pecuniary legacies A pecuniary legacy is defined in section 55(ix) of the Administration of Estates Act 1925 (AEA 1925). It can include an annuity and other specified types of legacy, but is usually ‘a general direction by a testator for the payment of money’ within the meaning of AEA 1925, s 55(ix). There are very specific statutory and equitable rules regarding the payment of pecuniary legacies. See Practice Note: Payment of legacies. Subject to any provisions contained in the Will, a fund is retained from the deceased’s estate (if solvent) to pay pecuniary legacies in accordance with the statutory order of the application of assets under AEA 1925, s 34 and Sch 1, Pt II. The fund is set aside after the payment of such funeral, testamentary and administration expenses,

We are unable to comment on the availability of principal private residence relief (PPR) as this will depend on all the precise facts and circumstances of the case. PPR relief is a relief from capital gains tax (CGT). It is available on the gain realised on the disposal of a dwelling house or land occupied and enjoyed with the dwelling house, which is or has at any time during the period of ownership been the only or main residence of the owner. The relief is only available on disposals by individuals, trustees and personal representatives (PRs), not on disposals by companies. See Practice Note: CGT—PPR relief

IP analysis: The court held that the claimant’s earlier registered right in a three-dimensional mark was invalid because the evidence presented was insufficient to conclude the mark had acquired distinctiveness through use by the relevant date. Additionally, the court found that four out of six features, listed as essential characteristics of the shape of the device, performed a technical function. Accordingly, the mark was found to consist exclusively of the shape of goods, which is necessary to obtain a technical result. Lastly, the judge assessed whether, if the mark was not held to be invalid, there would have been trade mark infringement, and concluded that there would be no infringement based on either a likelihood of confusion or on the reputation in the claimant's mark, since it was unclear from the evidence how and why the economic behaviours of the relevant consumers might change as a result of the use of the mark by the defendant. Written by Milena Velikova, trade mark attorney at Lee & Thomspon LLP.

Planning analysis: This fairly modest proposal brings up many issues which are familiar to those who are regularly involved in planning committee decisions. The judgment focuses on the planning committee’s duties to give reasons when approving a planning application, particularly where that approval is contrary to the planning case officer’s recommendation. The judge decided that this was a case where the planning committee was under a duty to give reasons for approving the planning application. There is no statutory duty for a planning authority to give reasons for granting planning permission. However, in some circumstances, public law rules of fairness dictate that reasons for an approval must be provided by an authority. The judge stated that those reasons had to be adequate and had to be articulated by members before they voted on whether or not to approve the application. The transcript of the planning committee’s debate was inadmissible as evidence of reasons for the decision. In order to give adequate reasons, members of the planning committee had to understand and set out which points, from the officer’s report and recommendation, which they disagreed with and the alternative conclusions they had reached on those points. The judge decided that they had failed to do so in this case. Written by Tracy Lovejoy, head of the planning department at Lanyon Bowdler Solicitors.

Was the missing executor a professional or lay individual? It is often clear from the description of the individual in the Will whether executors were appointed as a professional executor or were a relative or friend of the testator. If the missing executor was a professional executor it may be possible to trace them through their professional body. For example, the Law Society website has a 'Find a Solicitor' search facility which will show the current employment details of a practicing solicitor. If the professional executor cannot be traced via their professional body and appears to have ceased practising, you can contact their last known firm to find out if anyone in the practice has contact details

Was the missing executor a professional or lay individual? It is often clear from the description of the individual in the Will whether executors were appointed as a professional executor or were a relative or friend of the testator. If the missing executor was a professional executor it may be possible to trace them through their professional body. For example, the Law Society website has a 'Find a Solicitor' search facility which will show the current employment details of a practicing solicitor. If the professional executor cannot be traced via their professional body and appears to have ceased practising, you can contact their last known firm to find out if anyone in the practice has contact details to pass on a letter from you to establish contact. Someone within the firm is likely to know if the person has died and may be able to provide you with sufficient

We do not have a specific precedent with the wording requested. However, one of the points that should be brought to the attention of the Court of Protection when making the deputyship application is that all persons entitled to the same degree as the incapacitated administrator to take a grant have been cleared off, ie it has been established that they are either unwilling or unable to take the limited grant. This information could be included in Form COP1A as part of the application procedure. The Court of Protection will usually ask the solicitor

For a general overview, see our Practice Note: Payment of debts—solvent estate. The claim in this case is in contract, the deceased or his attorney or other agent acting on his behalf presumably entered into a contract with the proprietor of the nursing home that he would receive accommodation and care services in exchange for the payment of an agreed sum per week or per month. It may have been agreed that payment would be deferred until he left the nursing home or even until his death but at some point payment will have fallen due. The limitation period for such a claim is the same whether the claim were brought against the deceased in his lifetime

Excessive use The courts have held that the simple fact that there has been an increase in the volume of traffic using a right of way, does not in itself amount to excessive use of the right of way. See cases such as: Sloan v Holliday; British Railways Board v Glass; Woodhouse v Kirkwood. The express wording of the easement is what will bind the parties. Where the development of the dominant land threatens an excessive use of the easement, the court has determined that two questions must be asked: • does the development

It is common for a deed of easement granting a right of way to include a positive covenant on the part of the grantee (as the owner of the dominant tenement) to contribute towards the cost of maintenance/repair: see, for example, Schedule 4 of Precedent: Deed of easement—right of way. Ordinarily, the burden of a positive covenant will not run so as to bind successors

Public Law analysis: When consulting, the Home Secretary had provided insufficient information to permit the public a fair opportunity to participate. Accordingly, his decision to transfer a police commissioner’s powers to the elected mayor for the area, pursuant to section 107F of the Local Democracy, Economic Development and Constructions Act 2009 (LDEDCA 2009), was quashed. Written by Vivienne Sedgley, barrister at 4-5 Gray’s Inn Square.