The Practical Lawyer

Wills, probate and administration

Existence of will – will not found

The daughter of the deceased (D) and his widow sought a declaration that D had died intestate and that they were solely entitled to D’s estate.

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Beneficiary’s derivative action – when can beneficiary sue?

When can a beneficiary sue on behalf of the estate in which he is interested, ie bring a derivative action? The Court of Appeal has recently considered this question in the context of professional negligence proceedings brought by a beneficiary against the estate’s former solicitors.

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Inheritance – maintenance

Claims were made by the goddaughter and the partner of the deceased under the Inheritance (Family and Dependants) Act 1975 on the ground that the will did not make reasonable provision for them.

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Charities – gift aid toolkit

HMRC has developed a gift aid toolkit containing guidance, templates, an interactive claim form and other materials to help charities and community amateur sports clubs to use Gift Aid. Charities are also encouraged to sign up to receive automatic updates on issues relevant to them from HMRC’s website:

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Will – Alzheimer’s victim not incompetent

A recent case saw a will challenged on the grounds that the testatrix was under the undue influence of a family member and was not mentally competent when her final will was executed, since she had been diagnosed with Alzheimer’s disease at that time.

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IHT – valuations

A recent decision of the special commissioner seems to signal a change in the principles of valuation of assets for IHT purposes. The asset in question was the right to a life annuity under a discounted gift bond.

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Nil-rate band transfers – HMRC guidance

HMRC have issued new guidance on transfers of the unused IHT nil-band to the surviving spouse or civil partner.

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Charities – tax relief on foreign donations

Giving his opinion in the case of Persche (case C-318/07), Advocate General Mengozzi has suggested that gifts to charities based in other EU countries should benefit from the same tax exemption available to local charities.

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Intestacy – statutory legacies

From 1 February 2009 the statutory legacies due to a surviving spouse or civil partner of an intestate will increase. Where the intestate leaves a spouse and children, the spouse’s legacy will be £250,000 (up from £125,000).

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Letter of wishes – disclosure

The defining character of a letter of wishes in relation to a family discretionary trust is that it contains material that the settlor wants the trustee to take into account when exercising their discretionary powers, that is, to serve what is an inherently confidential process.

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Most-read articles

Constructive trusts – property
Wednesday, 12 September 2018
The author gives a helpful analysis of a ruling following a claim to establish a constructive trust or proprietary estoppel in respect of a domestic property. The deceased died intestate while living... Read more...
Professional negligence – adjudication
Wednesday, 12 September 2018
The Professional Negligence Adjudication Scheme is run by the Professional Negligence Bar Association. It offers a voluntary ADR procedure, modelled on the adjudication system in construction... Read more...
Waste – L’s liability
Wednesday, 12 September 2018
Ls should be aware of the environmental enforcement obligations that may be incurred as a result of T’s activities. Read more...
Part 36 – late acceptance
Wednesday, 12 September 2018
If a Part 36 offer is accepted out of time (ie outside the 21 day period) in a low value protocol case, then what are the costs consequences? In particular, does late acceptance mean a liability to... Read more...
HMOs – new rules
Wednesday, 12 September 2018
The definition of house in multiple occupation (HMO) changes on 1 October 2018. The new definition covers properties occupied by five or more people, comprising two or more separate households. Read more...
Energy efficiency – reassessment by T?
Wednesday, 12 September 2018
The Energy Efficiency (MEES) Regs mean it is no longer possible to grant new leases to properties with an EPC of F or G. Moreover, existing lettings of F and G properties will become unlawful from... Read more...
Knotweed – nuisance
Wednesday, 12 September 2018
Last year, we had county court claims in Cardiff and Truro in which it was held that the encroachment of Japanese knotweed would be actionable as a ‘private nuisance’. The Cardiff cases have now... Read more...
Procedure – expert witnesses
Wednesday, 12 September 2018
Expert witnesses must comply with court rules and related guidance appropriate to their area of expertise. New guidance for paediatric expert witnesses in family proceedings has now been issued. Read more...
Self-employed – or worker?
Wednesday, 12 September 2018
The Pimlico Plumbers case was seen as a victory for workers in the gig economy, with the Supreme Court looking at the reality of the relationship (rather than the legal labels attached). So, what... Read more...
Offences – mens rea
Wednesday, 12 September 2018
This was a pre-trial appeal of a ruling at a preparatory hearing. The two appellants (A) faced charges under s17 Terrorism Act 2000 of sending money overseas, or arranging to do so, knowing or having... Read more...


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