The Practical Lawyer

Wills, probate and administration

Probate - contentious probate

Where an error led to mirror wills each being signed by the wrong party, the wills could not be rectified under the AJA 1982 s20 as there was no clerical error. The error was not repairable and the intestacy rules thus applied.
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Practice – elderly clients

When trying to determine whether a client has the capacity to make a particular decision, it is essential to see the client personally. How and when you see the client may be important. It is suggested that, to put the client at ease, you first chat about matters other than the business that you intend to carry out. It is helpful to know from other sources something of the family background and client’s career so that you can verify the client’s recollection. Also ask a few questions about current affairs and past events.

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Practice – probate

Where the Mental Capacity Act 2005 is of direct relevance is in its relation to statutory wills made on behalf of those who lack testamentary capacity and provides that a decision made under the Act for or on behalf of a person lacking capacity must be done, or made, in his ‘best interests’. One of the matters included is his or her past and present wishes and feelings.

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Mutual wills – evidence

In a recent case, although documentary evidence was sparse through lapse of time, the parties had agreed to make mutual wills under which the children of their respective first marriages would take equal shares of their combined estate. The CA also held they had, in fact, made mutual wills before H’s death, despite the lack of evidence of an original of draft will for W, and that W’s subsequent will was ineffective.

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Trustees – beneficiaries

It is crucial for trustees to keep accurate and up-to-date records of their beneficiaries if they hope to rely on the protection under s27 TA 1925. They should also consider taking out insurance, particularly where dealing with a lot of beneficiaries over a period of time. If a known beneficiary has been overlooked, there will be s27 protection and insurance is the best alternative means of protection, particularly on the winding up of a trust.

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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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