Q&As

View Wills & Probate by content type:

Practice notes

Precedents

Q&As

News

Latest Wills & Probate News

How to construe a badly drafted Will (Goddard v Hunter)

The following Wills & Probate news provides comprehensive and up to date legal information on How to construe a badly drafted Will (Goddard v Hunter)

Conflict of laws, interpretation of Wills, testamentary trusts (Clarke-Sullivan v Clarke-Sullivan)

The following Private Client news provides comprehensive and up to date legal information on Conflict of laws, interpretation of Wills, testamentary trusts (Clarke-Sullivan v Clarke-Sullivan)

In brief: The Perils of Perfect Memory. Forged Wills and contempt of court (Patel v Patel)

The following Dispute Resolution news provides comprehensive and up to date legal information on In brief: The Perils of Perfect Memory. Forged Wills and contempt of court (Patel v Patel)

Application to discharge freezing order against trustees (JSC Mezhdunarodniy & Anor v Pugachev & Ors)

The following Dispute Resolution news provides comprehensive and up to date legal information on Application to discharge freezing order against trustees (JSC Mezhdunarodniy & Anor v Pugachev & Ors)

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

Can an executor serve a section 42 notice under the Leasehold Reform, Housing and Urban Development Act 1993 prior to a grant of probate being issued?

Can an executor serve a section 42 notice?Under the Leasehold Reform, Housing and Urban Development Act 1993 where a tenant had the right to a lease...

22nd Jan

Q&As

Where two beneficiaries (A and B) inherit a property, but only A is living in the property, can A either be charged rent or evicted and the property rented to a third party until the property is sold?

This Q&A is limited to cover the situation where neither A nor B (nor anyone else apart from the testator) had an existing interest in the property...

22nd Jan

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...

22nd Jan

Q&As

Following the death of a registered proprietor, the sole personal representative (PR) who is also the person entitled to an estate gave away part of their entitlement by means of a deed of variation to the recipient and is now refusing to honour this agreement. The PR entered into an agreement for sale relating to the property and the buyer registered a restriction on the title to the property relating to the sale contract. Can the recipient protect its interest in the property at HM Land Registry?

A person who is entitled to a share (or all) of an estate can give away their entitlement, or a part of it. If that is done by means of a deed of...

22nd Jan

Q&As

What will land registry require to enable a charge to be released when an individual lender was about to sign a form DS1 but passes away before signing?

The government guidance Practice guide 6: devolution on the death of a registered proprietor provides (at para [2.3]) that the personal representative...

22nd Jan

Q&As

The sole survivor (Mrs X) of a joint tenancy of a property dies and the property is being sold by Mrs X’s executors. The property is unregistered land. Would the death certificate of the other joint tenant (Mr X) be required in relation to the sale transaction.

If property is purchased in the joint names of two or more co-owners, a statutory ‘trust of land’ arises. Where property is held on a trust of land,...

22nd Jan

Q&As

An individual (D) leaves one-half of his estate to charity, and the other half on a life interest trust to an individual (A) who is not D’s spouse or civil partner, with remainder to charity. The estate’s value exceeds £1m. What are the inheritance tax implications for the estate?

Inheritance tax (IHT) is charged on the full market value of assets on death after any available exemptions and reliefs are applied. In calculating...

22nd Jan

Q&As

What are the inheritance tax rules concerning lifetime and testamentary gifts between UK and non-UK domiciled individuals?

The main point to appreciate is that the nil rate band (NRB) and the spousal exemption are two completely separate provisions of the inheritance tax...

22nd Jan

Q&As

X died testate leaving a £50K legacy to grandson. The rest of X's estate, including a property, passes to a lifetime discretionary trust set up in 2018. The beneficiaries of the trust are X's adult children, their issue and spouses. There is only one issue and they are under 18. X was a widow and inherited the bulk of her late husband's estate. A transferable nil rate band of £275k is available to X's estate. What, if anything, can be done to redirect the property to X's descendants so that the residential nil rate band applies?

Section 144 of the Inheritance Tax Act 1984 (IHTA 1984) is not available in this case as the discretionary trust was not settled...

22nd Jan

Q&As

A and B owned a property as beneficial tenants in common and A has died. Does B need to appoint a second trustee of the legal title of the property to overreach the beneficial interests of the beneficiaries of A's estate?

Following the death of A, the legal title in the property vests in B alone. B will continue to hold the property on a trust of land, as to a 50%...

22nd Jan

Q&As

Is an individual’s unused basic nil rate band (NRB) transferable to the estate of their surviving spouse where the surviving spouse dies shortly after the first spouse? In particular, the first spouse’s free estate passes instead to the couple’s children rather than to the second spouse due to the operation of a survivorship clause.

The operation of the basic nil rate band (NRB), the transferable NRB and how it is calculated is explained in Practice Notes: IHT—nil rate band (NRB)...

Produced in partnership with Phillipa Bruce-Kerr of Harrison Clark Rickerbys 22nd Jan

Q&As

An individual made a gift of a share of a property within seven years of death. How should the gifted share be valued for the purposes of calculating the inheritance tax (IHT) liability arising as a consequence of the individual's death?

The most important principle to grasp in a case such as this is that the amount chargeable to inheritance tax (IHT) is not the value of what was given...

Produced in partnership with Paul Davies of Clarke Willmott 22nd Jan

Q&As

Where the residuary estate consists of real estate, investments and cash at the bank, is there any authority that confirms that the date of assent to the settlement will be when the property becomes 'relevant property'? So far as the other assets are concerned, where the assets have been ‘sat on’ by the executors is there any authority confirming that when they received them in their hands they became relevant property?

The Will of a deceased testator speaks from the date of death and therefore the terms of it come into effect from that date. However, the...

Produced in partnership with Gaynor Jackson 22nd Jan

Q&As

When is tax due to be paid and by whom, on a failed PET into a discounted gift scheme in the joint names of spouses where one spouse died within seven years and the ultimate beneficiary is not the surviving spouse?

Discounted Gift Schemes (DGS’s) are schemes involving lifetime gifts of policies of life assurance designed to reduce a charge to IHT.Life assurance...

Produced in partnership with Oliver Hilton of Radcliffe Chambers 22nd Jan

Q&As

Is the right to occupy a property (left by Will) an interest in possession if the occupier is not entitled to income? Are the personal representatives of an estate entitled to principal private residence relief from capital gains tax where the individual occupying the property only has a right to reside and not an interest in possession?

Interest in possession—definitions for trust and tax law purposesThe interest in property of a beneficiary interested under a trust may be a fixed...

22nd Jan

Q&As

How should a deceased’s interest in three commercial properties be recorded on the estate inheritance tax return where the deceased was sole legal owner but had made an oral declaration many years ago that the property was held on trust for themselves, their spouse and their children and the family members have received and paid tax on their ‘share’ of the rental income?

Declarations of trustThe question specifically relates to an express trust by the deceased rather than an incomplete gift, as to which, see Pennington...

Produced in partnership with Lynne Counsell of 9 Stone Buildings 22nd Jan

Q&As

Where a testator has left legacies, a specific property and the residue to different individuals and the property is appropriated to the beneficiary, there will only be sufficient assets to pay debts and expenses and there will be no residue and no funds to pay the legacies. How the estate should be distributed in such circumstances?

DutiesThe personal representatives (PRs) must identify:•the beneficiary entitled•what each beneficiary is entitled to receive•the time at which each...

22nd Jan

Q&As

Would the tenant of a farm have an IHT liability on their death? Would it depend on the type of agricultural tenancy they have? Would the answer differ for a tenant of other commercial property?

While ordinarily a tenancy will in principle attract an inheritance tax (IHT) liability on its value (subject to the nil rate band and other reliefs)...

Produced in partnership with Chris Bryden of 4 King’s Bench Walk 22nd Jan

Q&As

A Will provides for a sum of money to be gifted to the sole grandchild of the deceased when she attains the age of 18. Executors have expressed concern over the grandchild (currently aged 16) inheriting such a large sum of money at 18. Can the executors apply to the court to vary the Will to increase the age at which the grandchild will inherit? Would the costs of the application be payable from the legacy, would the estate bear the costs or the executors personally?

The trustees specified in the Will (who may be the executors) may have been given sufficient power of advancement under section 32 of the Trustee Act...

22nd Jan

Q&As