The Practical Lawyer

Wills, probate and administration

Missing beneficiaries – probate genealogists

Working with professional probate genealogists can potentially minimise unnecessary costs being incurred by lawyers and reduce the risk of future claims from overlooked beneficiaries. In a small number of estates each year, research will be required to trace missing beneficiaries who form two categories.

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Wills – Jersey wills

Where an individual has assets in Jersey, a Jersey will is not always essential. Jersey law states that where the deceased was domiciled outside Jersey but owned assets in Jersey in his or her sole name, a Jersey grant must be obtained.

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Construction – codicils

If a gift made by a codicil was intended to be conditional, it would have made appropriate provision. And where the language used was ambiguous, the court was entitled to use extrinsic evidence and decided the issue on the basis of construction.

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Intestacy – executors’ litigation costs

Two recent cases clarify how far an executor can go in incurring courts costs on behalf of an estate. In the first case, a residuary beneficiary (B) alleged that a codicil making cash legacies which reduced the residuary estate was invalid for lack of capacity. B refused to apply to court himself, saying it was for the executor to prove its validity.

The executor’s claim for a s27 order to distribute the estate under both the will and codicil was, in fact, successful but the court said B could still challenge the codicil and bring proceedings against the cash legatees – and the executor would be protected from liability.

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Inheritance – children

A recent judgment redresses the balance where disinherited children dispute their parents’ wills. A 70-year-old mother died leaving her estate worth almost £500,000 between two charities. Her daughter (D) and five grandchildren were not entitled; however, D made a dependency claim under the I(PFD)A and was awarded £50,000 by the DJ. D appealed this decision on the basis that it was insufficient; the charities make a cross-appeal on the basis that she actually should have received nothing.

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Discretionary trusts – mistake

The Hastings-Bass principle in relation to discretionary trusts was affirmed in a recent case in which the argument of mistake was also dealt with at length.

Mr Pitt was brain damaged after a road accident and his wife, following the advice of financial advisers, transferred his money into a discretionary trust. But the trust was not a trust for the disabled under s89 ITA 1984 and was caught on the tenth anniversary of its inception by the ten-year IHT charge. IHT had not been considered when the money was transferred.

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HMRC – non-residence status

The CA held that HMRC had not changed its interpretation or guidance in relation to when it assesses whether taxpayers had achieved non-resident status.

In two recent cases, the taxpayers unsuccessfully applied for judicial review in respect of the decisions of the Revenue and Customs Commissioners (RCC).

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IHT – pilot trusts

Practitioners can use pilot trusts to minimise IHT, particularly since the changes to trust taxation after the Finance Act 2006. A pilot trust is a trust created during the testator’s (T) lifetime with a nominal sum of usually £10, with the intention that substantial sums will be added later, usually from the will.

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Wills – drafting pitfalls

Legislative changes relating to scientific and social developments have created potential drafting problems for practitioners drafting testamentary dispositions. Particularly, issues relating to same-sex partnerships, fertility treatment and adoption are matters draftsmen should take steps to identify when taking instructions.

Under the Human Fertilisation and Embryology Act 2008 a non-genetic parent, whether male or female, in same-sex couples might be recognised in certain circumstances as the legal parent of a child not naturally conceived. The impact on the meaning of ‘children’ and ‘remoter issue’ in will drafting is apparent.

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Wills – revocation by subsequent civil partnership

Entering into marriage or civil partnership will revoke a prior will unless the will specifically includes a suitable clause that it is not to be revoked, or there is a suitable subsequent codicil to that effect. It is wise for practitioners to use a proper precedent when a will is being made in such cases.

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