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Wills, probate and administration

Wills – caution against asset

In this useful article, the author looks at matters that should be considered in applications to vacate a caution entered against estate assets. In a recent case, a claim was made under the I(PFD)A 1975 by the testator’s two sons who had been excluded from the will. T was a farmer who had inherited a farm from his parents, in equal shares with his sister.

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Probate – lifetime gifts

Does a beneficiary have a duty to the executor to reveal a lifetime gift made by the testator? Yes, says the First Tier Tax Tribunal. In this case, the beneficiary of his father’s will was penalised for failing to reveal to the executors a substantial lifetime gift – despite a number of requests – and received an £87,000 penalty from HMRC.

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Court of Protection – habitual residence

Guidance on the appropriate test to determine habitual residence in Court of Protection cases has been given. At issue was where an adult (SW), who lacked capacity to decide where to live and the true nature of her care needs, was habitually resident for the purposes of determining whether the English court had jurisdiction to deal with MCA 2005 applications.

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Capacity – deprivation of liberty

The Court of Protection has supplemented and elaborated on questions of law arising out of a recent deprivation of liberty case involving adults who lacked capacity.

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Wills – family provision

A claim against an estate for reasonable provision failed on the facts which included the claimant’s behaviour towards her mother, the testator.

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Trusts – remuneration

A lay trustee acting gratuitously was ordered to refund money taken as salary, and was removed as a trustee, after his relationship with a trust beneficiary broke down. A family owned an estate held on trust which included a number of properties. The estate was low on funds. The properties included a house which was let; and a cottage occupied for a peppercorn rent by the half-brother of the claimant. The claimant was a beneficiary of the trust.

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Procedure – will; gifts to practitioners

The Law Society has issued an important practice note for practitioners preparing a will in circumstances where the client leaves a gift for the practitioner, or his/her family or colleagues.
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Probate – costs

The Rawlings case (see previous entry) continues to spurn much legal discussion, and the latest judgment – this time in relation to the issue of costs of rectification of a will – gives rise to further commentary on costs.
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Wills – costs; rectification

Where there is a reasonable but unsuccessful challenge to a will, the court will often order that all parties’ costs will come out of the estate. The latest Rawlings judgment specifically addresses the issue of the costs of rectification of a will.
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