The Practical Lawyer

Wills, probate and administration

Court of Protection – costs and mental capacity

There is a more benevolent approach to costs orders in CoP proceedings in relation to parties who are relatives not professionals. This helpful article provides an update from the Court of Protection and explains that a doctor’s opinion as to the donor’s mental capacity is not necessarily preferable to a solicitor’s.

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Wills – intestacy

The CA overturned a £2m legacy on the basis that the testatrix (T) suffered a rare mental condition and did not know and approve the contents of her will. In this ‘exceptional’ case, Neuberger said a court should be slow to find that a will does not represent T’s genuine wishes simply because its terms were surprising, inconsistent with her earlier expressed wishes, unfair or vindictive. 

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Wills – residuary legacy

The wording of a will must be construed from the context of the will alone and the court could not take into account other evidence of the testator’s wishes or intentions.

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Intestacy – domicile; surviving spouses

A spouse lawfully married in accordance with domicile laws, to a deceased individual who had died intestate, was a lawful ‘surviving spouse’ under the AEA 1925.

D, who had died intestate, was domiciled in Ghana and owned various properties including property in England. He had a number of wives as a result of various polygamous marriages under Ghanaian customary law and six of the defendants in this case were his widows. Some of these wives applied to be recognised as ‘the surviving spouse’ for the purposes of succession to D’s estate in England under s46 of the Act. 

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Inheritance tax – disclosure

The HMRC has issued guidance on the valuation of land and buildings to minimise the current tendancy of unrealistically low valuations of real estate. Executors are urged to use a professional valuer who must take into account the property’s state of repair and any special features. Executors must also tell the HMRC if they receive offers above the probate valuation.

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Intestacy – failure of gift

A purported transfer of a share by the deceased who died intestate ‘fell so far short of the formalities’ that the gift failed as imperfect. 

A deceased London accountant (D) incorporated limited liability companies to hide his financial affairs, often using aliases.

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Wills – testamentary capacity; mutual wills and rectification

It is an established principle that a testator (T) does not require testamentary capacity at the time he executes his will where he knew he was executing a will for which he had previously given instructions. An attempt by a recent claimant to overturn this rule was rejected, and the court held that a distinction is to be drawn between testamentary capacity and knowledge and approval. 

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Succession – mutual wills

Mutual wills are made by at least two people, usually in substantially the same terms and conferring the same benefits to each other. They are preceded by an agreement, effectively a contract, to make those wills and not to revoke them without the other’s consent. A common intention was not sufficient. The agreement can be oral or written but must be incorporated into the will or proved by clear and satisfactory evidence.

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Wills – intention

A will that was hand-written in India in Punjabi script by a deed writer, bore T’s signature and was witnessed and sufficient evidence was produced as to the will’s instructions and contents, was valid. T had expressly confirmed to a truthful and accurate witness that he was giving the instructions of his own free will and not under any threats or pressure by a third party.

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Wills – charitable gifts

In this case, T left her residuary estate worth around £449,000 to the Ancient Catholic Church known as the Church of the Good Shepherd. But there was no existing trustee on T’s death. After an early, successful period in the Church, by the time of T’s death there were just four members. After she died, meetings ceased and the other members left.

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