I4.239 Attribution and partly exempt residue—Benham or Ratcliffe
The discussion in I4.236–I4.238 of the various possible combinations of exempt and non-exempt specific gifts has assumed for simplicity that residue is either wholly exempt or wholly chargeable.
This article discusses what happens when residue (or the entire net estate where there are no specific gifts) is to be divided into shares, some exempt and some non-exempt. There are two key cases on this topic, Re Benham's Will Trusts1 and Ratcliffe, Holmes v McMullan2, both of which are discussed in detail below. The most common example of this type of disposition is probably the childless testator who divides his or her residue into shares, some given to charity and some given to relatives, but a residuary estate divided between surviving spouse or civil partner and children is not unknown, and indeed is what is provided for in the intestacy rules.
The statutory rules contain very little concerning the attribution of value to exempt or non-exempt shares of residue, in contrast with the detailed provisions concerning specific gifts.
The only provisions with any bearing on the topic are IHTA 1984, s 39, which provides that only the part of the value transferred that is not attributed to specific gifts under IHTA 1984, s 38 shall be attributed to gifts of residue. IHTA 1984, s 41(b) provides that, notwithstanding the terms of any disposition, none of the IHT attributable to the value of the property comprised in residue shall fall on any gift
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