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Wills, probate and administration

Wills – testamentary capacity

To what extent must a professional investigate whether a belief is false, and whether a false belief must be delusional or, simply, mistaken? In this article, the author examines the High Court ruling in McCabe involving a dispute between two brothers over their mother’s will. One of the brothers had been disinherited and challenged T’s will on grounds of lack of testamentary capacity, want of knowledge and approval, and undue execution.

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Court of Protection – NHS treatment

The Court of Protection has to carry out a balancing exercise where decisions as to ending treatment are to be made by NHS trusts.

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Wills – new EU law

New EU cross-border inheritance laws are now in place, allowing individuals to opt out of the forced heirship rules that apply in a number of EU countries. Individuals may opt either for the law of the country of their nationality or last habitual residence to apply to any assets across Europe.

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Court of Protection – mental capacity

Individuals lacking mental capacity must be involved in legal proceedings concerning their liberty, the Court of Appeal has ruled, following the introduction of streamlined procedures to the Court of Protection (CoP). The ruling will have implications for those being cared for in hospitals, care and residential homes, or those cared for with Alzheimer’s, autism or learning disabilities, as such individuals cannot consent to restrictions on their liberty.

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IHT – deeds of variation

A post-death deed of variation that failed to include a claim for retrospective IHT treatment under s142(1) ITA 1984 was rectified on the basis that it did not reflect the parties’ intentions.

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Wills – ISA inheritance laws

Changes to the rules on ISAs means spouses or civil partners will now be able to inherit their partner’s ISA pot free of inheritance tax.

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LPAs – guidance for attorneys

Practitioners will welcome guidance leaflets from the Office of the Public Guardian, aimed at individuals considering acting for someone under a lasting power of attorney.

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Court of Protection – care plans; local authorities

The president of the Family Division has given useful guidance as to the Court of Protection’s powers to impose care plans on local authorities reluctant to agree a care plan. The CoP cannot compel a public authority to agree to a care plan which the authority is unwilling to implement.

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Procedure – LPA

The court has ruled when a lasting power of attorney can be revoked on the basis of an attorney’s behaviour. In this case, the local authority applied to have the LPA revoked and to have itself substituted as the attorney.

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Executors – privilege

An executor can unilaterally waive privilege (where there are more than one); and a party cannot obtain disclosure from trustees as a beneficiary if its status as beneficiary is one of the issues to be decided, the High Court has ruled. In addition, the confidentiality of disclosed and inspected documents can only be protected by injunctive relief. 

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Page 8 of 33

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Disputed will – guidance; procedure
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What should you do if asked for correspondence and other documents in relation to a will you prepared for a client who has since died?  Read more...
MoJ – IT meltdown
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Many litigators are no doubt all too aware of the Ministry of Justice (MoJ) January 2019 IT failures that hit the delivery of frontline legal services in some courts.  Read more...
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The SC has widened the scope of the service of statutory notices. Read more...
Part 36 offers – appropriate
Wednesday, 13 February 2019
Part 36 of the CPR allows a claimant or defendant to make an offer of settlement before trial. If the offer is not accepted and the opposing party does not meet the offer at trial, the court may... Read more...
Noise nuisance – liability?
Wednesday, 13 February 2019
A recent High Court decision has confirmed that L is not liable for nuisance caused by its T merely because L does not take steps available to prevent the cause of the nuisance, even when L knows... Read more...
RICS – service charges
Wednesday, 13 February 2019
We noted the RICS Code of Practice on service charges in our October 2018 issue, p19; the ‘Service Charges in Commercial Property (1st edition)’ comes into force on 1 April 2019. Read more...
Notice of severance – rectification?
Wednesday, 13 February 2019
A recent case reminds practitioners of the importance of ensuring that a notice of severance accurately records all of the titles intended to be severed. Read more...
Children – parental responsibility; removal of
Wednesday, 13 February 2019
In what circumstances might the court order the removal of PR from the father? The author comments on a recent case which involved a unique set of circumstances justifying the removal of PR.  Read more...
Incompetence – not discrimination
Wednesday, 13 February 2019
The CA has held that an incompetent process does not amount to discrimination. Read more...
Sentencing – contempt of court
Wednesday, 13 February 2019
The Court of Appeal has ordered a new trial in relation to a claimant remanded to prison overnight for discussing evidence in a civil case.  Read more...

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