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A gift of property has been left to four beneficiaries but the Will does not specify who should bear the costs of the sale or transfer of the property. We intend to sell the property and split the proceeds between the four beneficiaries. Who should bear the costs in connection with the sale—the beneficiaries or the estate?
Q&As
The burden of costs in connection with legacies depends on the type of legacy. For an explanation of the different types of legacy, see the further reading link to Williams on Wills, Part H Contents of Wills, Chapter 30: Legacies. It will be seen from this extract that a gift of a property will be a specific legacy, providing it is a gift of particular property forming part of the testator's estate at death and is identifiable by sufficient description and distinguished from the testator's estate generally. The burden of costs in respect of different types of legacy is explained clearly in the following extract from Tolley’s Administration of Estates Part E, Payment of legacies: Costs incurred in connection with legacies: “Unless
A grandparent wants to set up Junior ISAs for their grandchildren in order to invest shares on their behalf. A Junior ISA may only be opened by someone with parental responsibility for the child but could the children’s parent delegate power to the grandparent by ordinary power of attorney to open the accounts on the children’s behalf?
Q&As
We refer you to Practice Note: Individual savings accounts (see section on ‘Individual savings accounts—Junior ISAs’), which explains that the Junior ISA account is held in the child's name but the application to open the account must be made by a person aged 16 or over. Unless the applicant is the child themselves (aged 16 or 17 years old), they
A grant has been applied for on the basis that the deceased was domiciled in England and Wales, but it now transpires that they were domiciled in Spain. What is the most appropriate course of remedial action? An application to amend the grant, or an application to revoke the grant and apply for a new grant?
Q&As
See Commentary: Matters for consideration: Tristram and Coote's Probate Practice [12.24]. Domicile is also relevant to the issue of what part of the estate is liable to UK inheritance tax. Where the grant has been issued on the basis of an incorrect domicile, the matter can be dealt with in one of two ways: an application to amend the grant, or an application to revoke the grant and apply for a new grant. Which option is most appropriate will depend on the nature of the error. Amendment See Commentary: Revocation of the grant: Butterworths Wills Probate and Administration Service [3.161] states that: If an error is discovered in the grant, so long as it is of a relatively minor nature, such as the misspelling of
A grant of probate has been issued with powers reserved to an appointed executor under a Will. How can the executor obtain full powers?
Q&As
Reservation of power to non-proving executor(s) A person appointed as executor under a Will is not obliged to accept the appointment. If they do not wish to accept the role, there are two options. They can renounce probate (unless they have intermeddled) or a grant of probate can be issued to one or more executor(s) with power reserved to the other executor(s) to apply for a grant at a later date. On the application for probate by the proving executors, notice should usually be given to the executor(s) to whom power is to be reserved and the application for probate must state that notice has been given (the Non-Contentious Probate Rules 1987, SI 1987/2024, r 27(1) (NCPR 1987)).
A granted a lease in favour of a limited company of which he had control. A has now died and the executors of his estate wish to arrange a surrender and regrant of the lease. The estate and the company pass to A's children. What are the CGT implications of a surrender and regrant of a lease for both landlord and tenant in such circumstances?
Q&As
A lease is surrendered when it is disposed of to the immediate superior interest. A surrender of a lease involves both a disposal of the lease by the tenant and the acquisition of it by the landlord and attracts capital gains tax (CGT). Where a lease is surrendered, whether or not on expiry of the term, and a new lease is granted on the same terms (other than its duration and the amount of rent payable) HMRC will (if the taxpayer so wishes) treat these transactions as not giving rise to any disposal
A grants a right of way to B. B purports to grant a licence to C to use the right of way but it appears that the licence is invalid because C’s use of the right of way is not for the benefit of the dominant land, as defined in the deed of grant. If C claims a prescriptive easement, could the licence granted by B defeat the claim?
Q&As
An easement may be established by prescription in any one of three ways: • prescription at common law • prescription under the doctrine of a lost modern grant • prescription as governed by the provisions of the Prescription Act 1832 (PA 1832) Our Practice Note: Acquisition of easements by long use sets out the basic requirements which must be satisfied in order to claim an easement by prescription.
A group of leaseholders were told there was no flammable material/cladding on the building, only to find out after purchasing from the freeholder and moving into the flats that there was some flammable material on the building. The leaseholders are able to evidence that the freeholder was aware of the cladding issues prior to advertising the flats for sale. Due to this, the flats have dropped in value by a significant amount. What claims would the leaseholders potentially have against the freeholder?
Q&As
Where a seller of property makes a false statement of fact, and the buyer relies on that in entering the contract, it may be appropriate to consider a claim for misrepresentation. Such a claim arises where one party
A group of tenants left a property in a dilapidated state, costing the landlord several thousand pounds. The initial tenancy agreement included all of the tenants. When the tenancy was passed to a new estate agent to oversee, a new tenancy agreement (TA) was drafted. The new agent did not carry out reference checks against the tenants and relied on the previous references. However, they failed to include the guarantor and one other tenant in the TA whose income was relied on. Can the missing guarantor and tenant be liable despite their exclusion from the new TA?
Q&As
The guarantor will only have been bound until the end of the previous tenancy agreement (TA). When the new TA was granted (whether the previous TA came to an end by effluxion of time or implied surrender upon the grant of the new TA) the new TA will have created a new relationship of landlord and tenant in which the (former) guarantor plays no part. See Practice Note: Variations and guarantors. The same will apply in respect of the tenant who was missed
A group reorganisation is taking place and all steps of the reorganisation, including multiple capital reductions by solvency statement, have to take place on the same day prior to the 3 pm same-day registration deadline at Companies House. If an overseas director resigns before the capital reduction and the execution of the solvency statement, will it cause the reduction to be void? The directors would not be reappointed (or act as shadow directors) following the reduction.
Q&As
This answer relates only to private limited companies, which are able to utilise the solvency statement procedure under the Companies Act 2006 to reduce their share capital. The resignation of certain directors prior to the remaining directors signing a solvency statement will not, as a matter of company laws invalidate any capital
A guarantee agreement to a six-month Assured Shorthold Tenancy (AST) states that the guarantee also applies any renewals or extension of the fixed term. Following expiry of the original AST, a new AST is granted for an increased rent and a longer term. The guarantor was unaware of the new tenancy. Does the original guarantee apply to the new AST?
Q&As
It is unclear from this Q&A whether the original term of the Assured Shorthold Tenancies (AST) has expired, or that the new tenancy agreement is a ‘renewal or extension’. The Q&A states that a new tenancy has been granted (albeit at a higher rent than was paid in the original AST and for a further fixed term). Assuming the original term
A guarantee of an assured shorthold tenancy (AST) states that it applies to any extension and renewal of the tenancy. The tenancy term expires and it becomes a periodic monthly tenancy. Can the guarantee continue beyond the end of the fixed term of the tenancy? Or is the guarantor released from its obligations once the tenancy changes from an AST to a periodic tenancy?
Q&As
Under section 5(2) of the Housing Act 1988 (HA 1988), upon the expiry of a fixed-term assured shorthold tenancy (AST), a periodic tenancy arises on the same terms and conditions. This does not apply if the tenancy comes to an end by order of the court or surrender or other action on the part of the tenant. It is assumed for the purpose of this Q&A that HA 1988, s 5(2) applies to this tenancy. However, if that is not the case and the tenancy has been varied, the guarantee may have been released. A guarantee can be lost where changes are made (expressly or by conduct) to the underlying contract, unless the guarantor consents, or
A guarantor guaranteed the obligations of the original tenant in an ‘old’ lease. The lease was later assigned and no guarantor was provided on assignment. If the parties wish to surrender the lease, does the guarantor need to be party to the surrender?
Q&As
We cannot locate any authority providing that a current (or previous) guarantor needs to be a party to a surrender for the surrender to operate. However, a current guarantor will often be party to the agreement to surrender (see Precedent: Agreement for surrender ) and/or surrender deed in order to: • ensure that the tenant, and therefore the guarantor,