Charles Cooper

CAVEATS AND STANDING SEARCHES

CHARLES COOPER REVIEWS THE USE OF CAVEATS AND STANDING SEARCHES AND A RECENT CHANGE TO THE NON-CONTENTIOUS PROBATE RULES

From November 2018 an online application can be made to the Probate Registry for Caveats or Standing Searches in a deceased’s estate (see: Non-Contentious Probate (Amendment) Rules 2018).

A Caveat enables the applicant to stop a Probate application but is a relatively draconian tool which should only be used where there is a dispute as to who can apply for Probate, or as to the validity or existence of a Will.

A Standing Search gives notification to the applicant when a Grant of Probate has been issued, and a copy of that Grant, which is a more useful tool for Inheritance Act claims where limitation runs from the date of issue of the Grant or where the applicant simply wishes to know the identity of the Personal Representative(s) and the value of the estate.

It seems likely that the use of Caveats and Standing Searches will increase with the introduction of an online application process.

November 2018 

[Charles practised as a Solicitor and Higher Court Advocate before being called to the Bar, and specialises in tax, trusts, wills and probate.]

Charles Cooper

NIL-RATE BAND LEGACIES AND THE NEW RESIDENCE NIL-RATE BAND

CHARLES COOPER REVIEWS THE CONSEQUENCES FOR NIL-RATE BAND LEGACIES OF THE NEW RESIDENCE NIL-RATE BAND FOR INHERITANCE TAX

Since 09 October 2007 it has been possible to claim, on their death, the unused Inheritance Tax Nil-Rate Band (‘NRB’) of their spouse or civil partner who died before them. This is often referred to as the ‘Transferable Nil-Rate Band’ or ‘TNRB’. By 2014, the Court of Appeal had been asked  to consider whether the wording of a so-called ‘Nil-Rate Band Legacy’ should properly include the TNRB as well. The case was Loring v Woodland Trust [2014] EWCA Civ 1314.

In that case, the relevant part of the NRB legacy read:

                ‘MY TRUSTEES shall set aside out of my residuary estate assets or cash of an aggregate value equal to                        such sum as is at the date of my death the amount of my unused nil-rate band for inheritance tax and to                      hold the same for such of the following…’

The Court of Appeal upheld the first instance decision that the legacy should be calculated so as to include both the unused NRB and the TNRB, even though the legislation had been introduced after execution of the will. Particular reference was made to the wording of s.8A Inheritance Tax Act 1984 as applying to increase the NRB rather than being a separate, additional, NRB.

HMRC has criticised the decision in Loring, in their Inheritance Tax Manual at IHTM43065, on the basis that the clause uses the specific words ‘the amount of my unused nil-rate band’.

From 06 April 2017, however, there is now an additional ‘Residence Nil-Rate Band’ and a ‘Transferable Residence Nil-Rate Band’ to contend with, the legislation for which is set out at ss.8D-8M Inheritance Tax Act 1984. Now, more than ever, caution is advised when drafting or interpreting NRB legacies within a will.

June 2018

 [Charles practised as a Solicitor and Higher Court Advocate before being called to the Bar, and specialises in tax, trusts, wills and probate.]

Divorce and financial remedies: reforms and representation

Long-awaited reforms to financial settlement processes and procedures are being piloted this month, with the introduction of three regional Financial Remedies Courts. These courts, which will be part of the Family Court, will deal with all types of financial remedy cases dealt with in the Family Court or Family Division. Their aim is to improve significantly both the application of procedural justice and the delivery of substantive justice in financial remedy cases.

Judicial training will be improved, while a selection of specialist judges and a process of early allocation to the right judge at the right level at the right place will ensure maximum efficiency. The reporting of judgements in small and medium cases by the judges of the FRC will promote transparency and consistency, creating a better predictability of outcome.

As family law specialists, we welcome this pilot, and look forward to seeing the positive effect it has on divorce cases involving financial dispute resolution.

This is because, when it comes to divorce, it’s often the financial matters that can create complications. Cases involving division of estates and parental responsibilities are often complex and require careful planning and adjudication to ensure a fair outcome.

Since 1 April 2013, family law legal aid has been limited to cases which involve domestic abuse. This has caused a rise in cut-price online divorce firms that promise quick, easy and above all, cheap divorces. However, people are discovering that without experienced advice from specialist barristers and solicitors, they’re making errors that can prove extremely costly. They often end up finding out that the cheapest option is not the best option. As Linda Lee, ex-president of the Law Society affirms, “A poorly managed divorce can add cost and time to the divorce process and a great deal of stress.”

Having an initial consultation with an experienced family law barrister can be extremely useful, especially when judgement is clouded by emotions.Our barristers will be able to give you a swift indication of the strengths and weaknesses of your case, help you manage your expectations and give you a clearer idea when negotiating terms. Our barristers can draft documentation, represent you in the courts, should your divorce not reach a settlement, and conduct financial hearings and appeals. Above all, you will receive expert tactical advice that may well save you money and stress in the long term.

If you’re looking to initiate a divorce, make sure you speak to the experts who can help you obtain the best outcome. Contact our friendly, professional clerks today, who will advise you on the suitability of your case.

 

Chambers welcomes two Pupils

Members of Chambers are delighted to welcome two new pupils for the final, essential, part of their training known as a pupillage The pupils will spend twelve months in chambers undertaking the preparation of cases under the careful supervision of experienced and knowledgeable barristers in the set as well as learning from the advocates as they work.

Jennifer Smith commenced a specialist family pupillage in October 2017 and will be available to accept instructions from April 2018. Charles Shwenn commenced a specialist civil pupillage in November 2017 and will be available to accept instructions from May 2018.