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Wills, probate and administration

Wills – capacity

The High Court has rejected a claim of fraudulent calumny in a probate claim. The deceased had capacity when he signed his will, and knew and approved its contents, the court held in a case where it was also alleged that there was a contract to share the deceased’s estate.

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Trusts – tax avoidance

What’s the difference between legitimate tax arrangements and abusive tax avoidance? The author of this useful article highlights the difference following the media coverage concerning the late Duke of Westminster’s estate and his tax affairs. It was widely reported that tax had been avoided through the use of trusts, agricultural property relief and business property relief, all uncontroversial and legal ways of mitigating tax.

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Wills – the golden rule

  In this article the author looks at the court’s approach to testamentary capacity and the applicability of the ‘golden rule’ in a recent case.

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Court of Protection – vulnerable person

New guidance has been issued by Charles J on facilitating participation of P and vulnerable persons in Court of Protection proceedings. The guidance is not prescriptive, but gives useful suggestions as to how practitioners might consider enhancing the participation of P in CoP proceedings. The guidance is primarily aimed towards health and welfare cases in the CoP, though it may also assist in some property and affairs cases.

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Wills – terminology

The correct interpretation and construction of the terms of a will continues to exercise the courts. Here, the author discusses a recent case where the central issue was the meaning of ‘United Kingdom’ in the deceased’s will.

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Wills – undue influence

This useful article considers the difficulties of proving undue influence where there are what the author calls ‘testamentary predators’, in light of a helpful illustration. He refers to precedent 222 Butterworth’s Encyclopaedia of Forms and Precedents (5th edition, 2016 review), where there are particulars of claim to revoke a grant of probate alleging testamentary incapacity, lack of knowledge and approval, and undue influence.

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Lasting powers of attorney – guidance

 

Solicitors who advise clients on lasting powers of attorney, and those acting as an attorney under an LPA, will welcome updated guidance from the Law Society. It reminds solicitors of the need to be aware of the Mental Capacity Act 2005 provisions; the provisions of the MCA Code of Practice; and the relevant guidance from the Office of the Public Guardian.

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Public Guardian – gifts

Giving gifts to others on behalf of an individual under a power of attorney can cause legal problems, not least because they may only make gifts if it is in the person’s best interests and the gift is ‘reasonable’. The Office of the Public Guardian has issued an updated practice note for attorneys and deputies on how they can make gifts and what is appropriate. It is published in light of the OPG’s updated policy on loans and supervision.
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Court of Protection – practice direction

The CoP’s final case management pilot practice direction is now published and will become effective on 1 September 2016 – giving practitioners time to prepare. The PD will take precedence over the CoPR (and its practice guidance). Three case management pathways for CoP proceedings are specified in the scheme:
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Trust corporations – practice guidance

The Law Society has published a useful practice note on trust corporations – corporations which undertake the administration of trusts and estates, and in some cases act as a Court of Protection deputy and attorney. The PN is aimed at considering establishing a trust corporation to use as an in-house trustee, executor, administrator, attorney or deputy.
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