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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