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Latest Wills & Probate News

Withdrawing a Part 36 offer despite protected claimant party’s purported acceptance (Wormald (by his mother and litigation friend) v Ahmed)

The following Dispute Resolution news provides comprehensive and up to date legal information on Withdrawing a Part 36 offer despite protected claimant party’s purported acceptance (Wormald (by his mother and litigation friend) v Ahmed)

Private Client—Wills, secret trusts and proprietary estoppel (Titcombe v Ison)

The following Wills & Probate news provides comprehensive and up to date legal information on Private Client—Wills, secret trusts and proprietary estoppel (Titcombe v Ison)

Contentious probate—section 9 of the Wills Act 1837—capacity—knowledge and approval—pleading (Gardiner v Tabet)

The following Wills & Probate news provides comprehensive and up to date legal information on Contentious probate—section 9 of the Wills Act 1837—capacity—knowledge and approval—pleading (Gardiner v Tabet)

Appointment of administrator pending suit following difficulties financing former family home (Ugolor v Ugolor)

The following Wills & Probate news provides comprehensive and up to date legal information on Appointment of administrator pending suit following difficulties financing former family home (Ugolor v Ugolor)

Featured Wills & Probate content

Codicils

Codicils may be used for making any alteration in a Will such as to alter the executors or make changes in legacies, whether by addition or deletion...

Missing persons and presumption of death

The disappearance of a person does not automatically enable others to take control of that person's affairs or their property ownership. That can...

Intermeddling in an estate

What is intermeddling?An individual who performs certain duties which a personal representative (PR) would perform to administer a deceased’s estate...

Definition of a personal representative

STOP PRESS: With effect from 2 November 2020, the Non-Contentious Probate Rules 1987, SI 1987/2024 (NCPR 1987) are amended by the Non-Contentious...

Practice notes

Power of appropriation

Appropriation is a process by which a personal representative or a trustee uses a specific asset in the estate or trust fund, to meet in full or in...

9th Nov

Practice notes

Contents of Wills—residuary gifts

What a residuary gift comprisesThe residuary estate will not necessarily comprise only cash, but will usually include other assets that have not been...

9th Nov

Practice notes

Revocation of Will

Revocation of a WillA Will is revocable at any time during the testator's lifetime. A testator may not revoke their Will in any manner they choose: a...

9th Nov

Practice notes

Will drafting—hotchpot

Hotchpot clauses in Wills can be very useful in equalising benefits between beneficiaries. They also have a place in respect of a partial intestacy....

9th Nov

Practice notes

The chain of representation

Where one of several executors diesSection 5 of the Administration of Estates Act 1925 (AEA 1925) states that the office of executor is personal to...

9th Nov

Practice notes

Will errors—affidavit evidence

STOP PRESS: With effect from 2 November 2020, the Non-Contentious Probate Rules 1987, SI 1987/2024 (NCPR 1987) are amended by the Non-Contentious...

9th Nov

Practice notes

Validity of Wills—rectification of Wills

CORONAVIRUS (COVID-19): As announced on 17 April 2020, the President of the Family Division, Sir Andrew McFarlane, authorised District Probate...

9th Nov

Practice notes

Preparing the application form PA1P/PA1A for probate or letters of administration

STOP PRESS: With effect from 2 November 2020, the Non-Contentious Probate Rules 1987, SI 1987/2024 (NCPR 1987) are amended by the Non-Contentious...

9th Nov

Precedents

Warning to caveator

Warning to caveator, Rule 44(5)In the High Court of JusticeFamily Division[The nominated registry as defined by rule 44(15)]To [name] of [address] a...

9th Nov

Practice notes

Payment of legacies

Identification of beneficial interestsThe personal representatives (PRs) of an estate must identify:•the beneficiary or beneficiaries entitled to each...

9th Nov

In-house

Most recent Q&As content

Q&As

Are unvested stock options included as taxable assets for IHT purposes on the death of the option holder? Does it make a difference if the option agreement provides that a portion of the options will lapse and become unexercisable in the event of death? Also, stock options are taxed as income when they are exercised. Is any tax discount applied to avoid a double charge where an option has been taxed for IHT at death, and then again for income tax when exercised?

This Q&A has assumed that 'vested' means that the option has become unconditionally capable of exercise.This is a complex area of law. Broadly, the...

5th May

Q&As

Is there any basis upon which a retired professional can claim under a charging provision in a Will?

To some extent the answer to this Q&A will depend on the remuneration clause in the Will, and the circumstances of the case. The general rule remains...

Produced in partnership with Paul Davies of Clarke Willmott 5th May

Q&As

If 50% of the residue of an individual's estate is left to a married couple but the husband has died and there is no clause as to what should happen in this scenario, what happens to the 50% share? Does it fail entirely, does all 50% go to the wife, or does she receive a 25% share and the remaining 25% share fails?

The key factor in determining how the gift in residue will devolve following the death of the husband is the nature of the gift given to the spouses:...

5th May

Q&As

Where a Will contains no trust provisions save for a reference to the STEP Standard Provisions (1st edition) Will conditions, which provisions incorporate Trustee Act 1925, s 31 (as amended), must the trustees pay income to that beneficiary from age 18?

STEP Standard Provisions and Section 31 of the Trustee Act 1925 (TA 1925)By paragraph 4 of the STEP Standard Provisions (1st edition):'Sections 31 and...

5th May

Q&As

Where there is more than one residuary beneficiary of an estate, if a claim is made against the estate under the Inheritance (Provision for Family and Dependants) Act 1975, can one of the beneficiaries settle the claim made against their share of the estate and another beneficiary defend the claim against their share?

The Inheritance (Provision for Family and Dependants) Act 1975Section 1(1), (1A) of the Inheritance (Provision for Family and Dependants) Act 1975...

4th May

Q&As

If personal chattels are left in a Will to trustees to distribute in accordance with a written memorandum, how should the items be distributed of no memorandum is found following the testator's death?

There are a number of different forms for such a trust of chattels.Frequently, such a clause will include words which leave the chattels to the...

30th Apr

Q&As

Where a father is the litigation friend for his three children, is the mother entitled to file a notice of change with certificates of suitability seeking to insert herself as the litigation friend, or should the mother make an application for the father's removal, which he could contest?

In proceedings that involve children (ie persons under the age of 18) or protected parties (persons who lack capacity to conduct their own...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 28th Apr

Q&As

What are the next steps after an appearance to a warning has been entered following the issue of a caveat? Is it necessary to issue a claim? If an application must be made, which form is to be used and under which jurisdiction?

We refer you to Practice Note: Probate actions—caveats, which explains what a caveat is, the procedure for entering a warning to a caveat, lodging an...

28th Apr

Q&As

A Will grants the surviving partner a right of occupation for life unless the partner ceases to occupy the property for six months. Has the term ‘occupation’ been defined in case law? What happens if the partner ceases to occupy the property for six months for reasons outside of their control. Can the partner return to live in the property or do the Trustees have the right to sell the property?

This Q&A is limited to considering the definition of occupation and what may constitute occupation.The starting point in such cases is always the...

Produced in partnership with Matthew Watson of XXIV Old Buildings 28th Apr

Q&As

A deceased's Will created a life interest in their share of a property for their partner, with remainder going to the deceased's child. The property has been sold within two years of death and the life tenant and remainderman have agreed to a split of the proceeds. Would a variation of the Will or a termination (partition) of the trust be the best option, bearing in mind the tax consequences?

This Q&A assumes that the child in question is an adult and also, for inheritance tax (IHT) purposes, that the life tenant holds a qualifying interest...

Produced in partnership with Lynne Counsell of 9 Stone Buildings 27th Apr

Q&As

Where a property that is owned by trustees under a Will trust is occupied by a beneficiary and another occupier under a licence, but on the termination of the licence, the occupier refuses to vacate the property, how are the trustees able to evict the occupier and does the occupier have a beneficial interest in the property?

This Q&A considers how trustees, as owners of a property under a Will trust, are able to evict an occupier of the property upon termination of a...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 27th Apr

Q&As

The deceased's Will includes a nil rate band discretionary trust and authorises trustees to permit the deferral of the payment to the trust to be interest-free and to secure its payment by taking a charge over any property. Could the trustees accept an IOU from the surviving spouse to fund the legacy? Alternatively, could the trustees take a charge over the surviving spouse's financial assets? More than two years have passed since the death of the deceased.

A legacy to a nil rate band (NRB) discretionary trust is usually funded in the following ways:•cash, property or assets owned by the testator are...

27th Apr

Q&As

A registered charity operates a care home and wishes to grant a service ‘occupancy’ at a reduced rent level (less than half of the market rate) dependent on the employee's employment as Resident Warden/General Maintenance Person at the care home. The property may also be occupied by the employee's wife and daughter. The employee would have exclusive occupation. Would this be a service occupancy or a tenancy?

In Street v Mountford, Lord Templeman observed that: 'There can be no tenancy unless the occupier enjoys exclusive possession; but an occupier who...

27th Apr

Q&As

Where business property relief (BPR) is available on a legacy of shares into a discretionary trust (effected by deed of variation) where the deceased's interest automatically accrued and vested in the surviving shareholders in return for payment made to the deceased's personal representatives so that the trust fund is constituted by cash, does BPR continue to be available on exits from the trust more than two years following the date of death?

Business property relief (BPR) was introduced by the Finance Act 1976 and has developed over the years. The aim of the relief is to ensure that a...

26th Apr

Q&As

Where a gift to X of a share in the testator's residuary estate is void because X's spouse witnessed the Will, can the parties enter into a deed of variation so that X receives their share after all?

As a matter of English law, the beneficiaries of a deceased person’s estate are entitled to alter the disposition of the whole or part of the estate,...

23rd Apr

Q&As

If a person (X) has been widowed twice and received the whole of the deceased spouses’ estates on their deaths, if X were to make a lifetime gift of £325,000 and die within seven years afterwards, would X's estate still benefit from an enhanced nil rate band of £650,000?

Where a person does not fully use their nil rate band (NRB) of inheritance tax on their death, for example as a result of leaving a significant part...

23rd Apr

Q&As

In a claim against an estate for monies owed under a child maintenance order representing unpaid maintenance payments going back more than six years, do the usual limitation periods apply or does the CSA or child maintenance service have any regulations relevant to this scenario?

This Q&A considers whether there is a limitation period that applies for the collection and enforcement of arrears of child maintenance. It...

Produced in partnership with Katherine Illsley of 4 King’s Bench Walk 20th Apr

Q&As

The deceased held all of their assets (worth between £6m and £8m) jointly with their spouse and so the entire estate passes by survivorship to the surviving spouse with no inheritance tax (IHT) payable due to the spouse exemption and no grant of probate required. Is an IHT account on form IHT400 still required in these circumstances?

The brief answer to the question is yes, an IHT400 must be completed despite the fact that all of the assets in the deceased’s estate passed by...

19th Apr

Q&As

Where a Will provides for a number of small cash legacies to minor beneficiaries and incorporates the 1st edition of the standard Society of Trust And Estate Practitioners provisions, can the trustees pay the capital to the parent or guardian of the relevant minor or must they retain the funds until the beneficiary attains the age of 18?

Clause 6 of the STEP Standard Provisions (1st Edn) covers the application of income for the benefit of a minor, but does not cover payments of cash...

Produced in partnership with James Brockhurst of Gowling WLG 19th Apr

Q&As

In circumstances where the Will of a foreign domiciled national is restricted to immovable assets (land) they have in England, would a grant only be effective in respect of those immovable assets or could it include movable assets (bank account) in England?

The executors under the Will have power to deal with the English land. They have been given no authority to deal with the English bank account, which...

Produced in partnership with James Brockhurst of Gowling WLG 19th Apr