The Practical Lawyer

Wills, probate and administration

Wills – revocation

A will could not be revoked under the Wills Act where the testator then entered a civil partnership and the will merely included a general statement that it was his intention that it should survive a subsequent civil partnership. Also, the will did not show he was expecting to enter a civil partnership, let alone with a named person.

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Wills – joint assets; election

The CA used the rarely applied doctrine of election in a recent case. Where a testator’s (T) will purports to give away property that he does not own and the true owner is a beneficiary under the will, he has a choice. He must elect whether to co-operate and give effect to the will by contributing the asset, or accept a reduced share of the estate, taking into account the value of his own property.

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Wills – joint assets; specific performance

In a recent case, a house was in the joint names of the deceased (D) and his first wife (F). D died intestate, the estate passing to his second wife (W). W relied on an agreement signed by F some years previously in which she agreed to sell her interest to D. D had declared that if anything happened before contracts were completed, his son would be the beneficiary.

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Wills – testamentary capacity

In the light of increasingly complex claims based on lack of testamentary capacity, here is a useful reminder of factors to be considered:

    The test for testamentary capacity is set out in Banks [1870].

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Contested probate – testamentary capacity; costs

The CA emphasised that the rule that legal practitioners should consult medical practitioners regarding the mental capacity of a testator was a rule of good practice and not a rule of law.

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Wills – avoiding claims

A useful reminder for minimising the risks associated with drafting wills in the light of increasing claims:

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Tax – residence

In a recent, long-running case, a taxpayer (G) had been a UK resident for tax purposes from 1986 to 1997. In 1997 he rented a flat in Cape Town and later, a house, keeping another house near Gatwick. He spent as much time as possible in South Africa, hoping to retire there.

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Practice – maintaining attendance notes; duty of care

The need for maintaining good attendance notes was re-emphasised in a recent case involving a disputed will.

A will was drafted by a solicitor leaving the residue of H’s estate to W for life with the remainder going to charity, including a power to advance £100,000 to W. But W contended that the power should, in fact, have been to advance it all except for the last £100,000. In the absence of a full attendance note, the judge accepted W’s contention.

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Privileged wills – intention

In a recent and unusual case involving privileged wills, it was not necessary for the testator to show he knew he was making a will, but that he deliberately intended to express his wishes as to what should happen to his property on his death.

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Trusts – expenses

A recent case gives judicial authority for the deductibility of expenses from income for trusts to which the RAT applies. The CA clarified an issue affecting trustees of income-producing discretionary trusts: to what extent can trusts management expenses be deducted from income for income tax purposes?

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