The Practical Lawyer

Wills, probate and administration

Wills – correcting mistakes

Where errors are not spotted until after a testator’s death, the beneficiaries may be prepared to correct the problem voluntarily through a deed of variation. Any beneficiary who is asked to consent to such should always be advised to seek independent legal advice.

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Wills – drafting errors

As Zurich Insurance points out in its latest bulletin, when it comes to wills the most common claims arise as a result of drafting errors. Basic errors include:

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Place of burial – disagreement

The general rule is that ‘the person entitled to the grant of administration has the duty and the right to make the funeral arrangements’, although the court may still be able to override a personal representative’s decision (University Hospital Lewisham NHS Trust v Hamuth [2006]).

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LPA – delay

A letter to the LSG highlights the delay experienced by practitioners in getting LPAs registered with the Office of the Public Guardian.

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Wills – capacity

A recent judgment confirms that the question of whether or not a testator had capacity when a will was made does not fall within the scope of MCA 2005 but should be determined under existing common law principles.

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Intestacy – review

The Law Commission will be reviewing the law of intestacy and the 1975 Act as part of its Tenth Programme of Law Reform.

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Personal pensions – tax charges on death during drawdown

People with personal pension schemes who put their pension into drawdown on retirement may be unaware of a nasty stealth tax that will bite upon their death. Drawdown involves money being taken out according to HMRC rules.

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IHT – transferability of the nil-rate band

An article in the TEL&TJ examines the government’s proposal to allow a survivor’s estate to use up any unused nil-rate band of their deceased spouse or civil partner.

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Intestacy – no evidence of firm promise

David Thorner worked unpaid on Peter Thorner’s farm for 25 years. They were cousins. Peter revoked a will he had made in 1997 in order to exclude a beneficiary.

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IHT – relevant property regime

An article in the TEL&TJ looks at some of the traps, pitfalls and risks which have always existed for settlements which are subject to the IHT relevant property regime (RPR) and how these have changed and increased following the Finance Act 2006.

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