Archive for the ‘Trusts Wills and Probate’ Category

Non-Dom Will Challenged by Family Kept Unaware of Death

Wednesday, August 10th, 2011

An English lawyer working in France, but domiciled in Belgium, took the unusual step of leaving instructions that his family in England should not be made aware of his death, allowing his executors (a friend and the man’s Belgian fiancée) to wind up his estate.

 
His will, made in England, left his entire estate to his uncle – the only relative who was informed of his death.
 
Several months later, his family discovered that he had died – which put in context a text sent from his mobile phone which read, ‘Not this year. There’s a problem’, in response to an invitation to spend the Christmas after he had died in England with his family.
 
The family of the dead man claim he was not domiciled in the UK, hence his will was not valid. They believe his estate should be administered according to Belgian law. Under the succession laws prevailing there, they stand to inherit his estate.
 
Many European countries have strict succession laws, which means will planning for those who live overseas or who have overseas properties must be approached with particular care.

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Man Seeks Lesser Share of Estate

Wednesday, July 6th, 2011
It is not often that a will is challenged by a person who wishes to have their share of an inheritance reduced, but that is what the Court of Appeal had to contend with recently.
 
The will was contested by a man who stood to inherit his parents’ house, which had also been his matrimonial home. The couple’s wills both gave a half share in the property to their son and the survivor to retain the other half share. One the death of the second spouse, the property therefore passed to their son. The man’s three sisters argued that the will should be rectified, so that on the death of the surviving spouse, the whole of the estate (including the half share in the property) should be divided equally between the four children and he agreed that this was his parents’ intention.
 
The claim was opposed by the man’s estranged wife, who wished his assets to be greater, so that her claim for financial provision might be larger.
 
A letter to the couple’s solicitors written in 1990 indicated that they wished the value of the property to pass to all four children, but when their wills were drafted, they were drafted otherwise.
 
The first problem the claimants faced was that the claim was brought outside the statutory time limit for bringing such a claim. The limit can be extended with the permission of the court. The claim was initially refused on that basis and this decision was appealed to the Court of Appeal.
 
The main issue, however, was how the wills had been drafted to say one thing, when correspondence from the couple indicated something else.
 
The Court concluded that there had probably been ‘a slip in the dictation or the typing’ when the solicitor wrote to the couple regarding their wills, and concluded that ‘on balance, though the point is a little puzzling, it seems to me that by some way the most probable reconciliation of the facts is that the wills did correctly reflect the instructions given…’ and the difference between the wills and the letter could be explained by them not having read the letter ‘with such close attention as to spot the error’.
 
Accordingly, the claim for rectification was rejected.
 
This case shows how high the hurdle is for those who seek to ‘re-write’ a will. Normally, a will’s terms can be varied with the agreement of all the beneficiaries, but this needs to be done promptly. It seems that this could have been done in this case if the beneficiaries had grasped the nettle promptly.
 
If the will of a member of your family is not in accordance with their wishes, or the beneficiaries wish to vary the terms of a will they benefit from, contact us.
 
 

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Selling Land Using an Attorney

Monday, June 13th, 2011

Moorland2There are several possible instances – such as absence abroad – when land is to be sold and an attorney has to be appointed to undertake the transaction in the place of the beneficial owners.

 
The Land Registry allows this to be done but has quite specific requirements which govern when it will and when it will not accept a power of attorney.
 
The main requirements are that:
 
  • the power of attorney must validly executed as a deed;
  • the power of attorney must be in force at the date of the document in question; and
  • the power of attorney must give the attorney the power to undertake the transaction.
 
The original or a validated copy of the power of attorney must be supplied to the Land Registry. Alternatively, a specific form (‘Form 1’) can be submitted and signed by the conveyancer that confirms that the conveyancer holds the original or a copy of the power of attorney and that it satisfies the above requirements.
 
Where the power of attorney is more than 12 months old, the purchaser of a property can request evidence that it has not been revoked.
 
 
For more information see http://www.landreg.gov.uk/upload/documents/lrpg009.pdf

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IHT – Prepare to Have Valuations Queried

Thursday, June 9th, 2011

Alms HousesThe potential for reducing Inheritance Tax (IHT) bills by placing ‘soft’ valuations on assets is all too clear and has led HM Revenue and Customs to undertaking almost 10,000 investigations into IHT returns in 2010. This represents an ‘investigation rate’ of approximately 1 per 50 deaths. However, since more than 95 per cent of estates are not subject to IHT (either because they are within the nil rate band or the estate passes to a spouse or civil partner), the likelihood of a valuation being challenged where IHT is, or could be, at stake is considerable.

 
It is important to ensure that valuations of assets on death are carried out properly and professionally and can be substantiated. If your estate is likely to be subject to IHT, we can assist you to ensure that to the fullest extent, it ends up in the hands of your family, not the Exchequer.
 
 
From  Hacker Young – reported in Accountancy Age, 7 June 2011. Statistics from HMRC and the Office for National Statistics.
 

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