The Practical Lawyer

Wills, probate and administration

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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Probate – disputed will

A sole beneficiary (X) of a disputed will where the estate was subject to a world-wide freezing order was entitled to use a reasonable amount of estate monies to fund his reasonable legal expenses.

In a recent case, X applied to have the terms of the freezing order varied so that he could continue to defend legal proceedings and draw living expenses from the estate of his deceased civil partner.

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Trusts – conflicts of interest

A court recently ruled on the power of the court concerning the replacement of an individual with the power to appoint the protector.

The protector/appointer was in a position where their own interests were in serious conflict with those of the trust beneficiaries. Indemnity costs were awarded against them because their failure to resign promptly was unreasonable, resulting in years of avoidable litigation.

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Gifts of assets – Law Society guidance

The Law Society has issued detailed guidance for solicitors advising clients on transferring their assets to family and friends before they die. Practitioners should note that its implications go beyond the simple making of gifts.

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Trusts deeds – drafting

Where parties record their intentions in a formal trust deed, the courts will endeavour to give effect to that document even if it is poorly drafted.

In a recent case, a brother and sister purchased two properties. After the death of the brother, his wife made a claim that she had a beneficial interest in that which was the matrimonial home. The wife was also his sole executrix and sole beneficiary.

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Wills – testamentary capacity

It is generally considered good practice for solicitors taking instructions for a will from an elderly or infirm client to comply with the ‘Golden Rule’ in Kenward v Adams: a medical practitioner should witness the execution of the will and be satisfied as to the testator’s mental capacity and record his observations.

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