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.]

Unmarried couples win right to claim bereavement damages following landmark ruling 

Unmarried couples are to have the same rights to bereavement damages as married couples following a landmark Court of Appeal ruling.

NHS worker Jakki Smith, 59, brought an appeal after discovering she was not eligible for damages after her partner John Bulloch died in 2011.

http://www.telegraph.co.uk/news/2017/11/28/unmarried-couples-win-right-claim-bereavement-damages-following/

 

Private Client Law and Practice- Seminar Tuesday 10th May 2016

Presented by Magdalen Chambers

at Larkbeare House, Topsham Road, Exeter, EX2 4NG

Including sessions on

  • Inheritance Tax – Relevant Property Trusts, Agricultural Property Relief and Business Property Relief
  • Trustees Powers & Duties
  • Removal of Trustees & Administration Actions
  • Probate disputes

Cost: £50 + VAT per delegate (including lunch)

The Seminar will qualify for 4 hours CPD.

To reserve your place please contact
Lisa Glithero:  01392 208484 LGlithero@magdalenchambers.co.uk.

Last Minute Wills

It is not uncommon for relatives to take an aged member of the family to a solicitor so that a new will can be executed. The Court of Appeal decision in Hawes v Burgess [2013] EWCA Civ 73 demostrates the care that has to be exercised in such a situation.  The relevant will was drafted by an independent solicitor who was experienced in drafting wills and who had explained its contents to the deceased before she executed it three weeks later.  The trial Judge found that the deceased lacked the degree of understanding to comprehend and appreciate the claims to which she ought to have given effect.  He also found that the deceased did not know and approve the contents of the contents of the will. Read more