Ten Old Square
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5 Contributions by Ten Old Square Experts
PRACTICE NOTES
Where the court concludes that an applicant has not received reasonable financial provision, it may make an order under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975). The court’s powers extend to orders for:
periodic payments
a lump sum payment
the transfer of property
the settlement of specified or identified property
variation of an ante- or post-nuptial settlement
variation of the trusts on which the estate is held
In practice, the order most frequently made is a lump sum to the applicant. The foundation for any award is the concept of ‘reasonable financial provision’. For a spouse or civil partner, this denotes such financial provision as it would be reasonable, in all the circumstances of the case, for a spouse or civil partner to receive, whether or not needed for their
Private Client
PRACTICE NOTES
The scope of CPR Part 64
CPR Part 64 addresses:
claims concerning the administration of deceased persons’ estates and trusts
charity proceedings (treated in a distinct section)
This Practice Note deals with the former. It extends to claims asking the court to decide any question arising:
in administering the estate of a deceased person or in the execution of a trust
for an administration order, whereby the estate or trust is administered under the court’s directions
for the variation of a trust under the Variation of Trusts Act 1958 (VTA 1958)
under section 48 of the Administration of Justice Act 1985 (AJA 1985)
The jurisdiction to determine questions arising in estate administration or trust execution is very broad, and will cover most claims in which a trustee or beneficiary seeks a court ruling on an issue
Private Client
PRACTICE NOTES
In Thorner v Major, Lord Walker opened his judgment by citing Simon Gardner’s Introduction to Land Law (2007), observing that no definition of proprietary estoppel manages to be both exhaustive and beyond dispute, and that many efforts have achieved neither. This was Lord Walker’s opening point. He went on to note that most commentators concur that the doctrine rests on three core ingredients, though phrased in varied ways, as they put it differently: an assurance or representation made to the claimant; the claimant’s reliance upon it; and detriment suffered by the claimant as a result of that (reasonable) reliance. The overarching requirement, or touchstone, is unconscionability: unless holding the promisor to the promise would be unconscionable, the court will grant no relief. Once a right to relief is established, the court must devise an appropriate remedy. That question was central in the Supreme
Private Client
PRACTICE NOTES
The tax position of an estate is frequently central when resolving claims under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975)...
The taxation of estates
Inheritance tax (IHT) applies to a notional transfer of assets on death. Up to the nil rate band (NRB) of £325,000 the rate is 0%; thereafter, assets are taxed at 40% (subject to available exemptions and reliefs). Any unused NRB can be transferred to a spouse, and a residence nil rate band (RNRB) has also been introduced. Transfers to (domiciled) spouses and to charities are exempt from IHT, and certain categories of property—agricultural property and business property—may fall outside the charge. Settlements are governed by a separate taxation regime. For more information, see: Estates—inheritance tax—overview.
Capital gains tax (CGT) is charged on the uplift in value of assets from acquisition. On death, accrued gains are
Private Client
PRACTICE NOTES
This Practice Note examines how a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) could be settled so as to:
optimise access to welfare benefits or tax credits for a claimant
prevent a claimant from forfeiting eligibility for other state funding, including community or residential care
secure equivalent outcomes for estate beneficiaries who are not I(PFD)A 1975 claimants
The powers available under the Inheritance (Provision for Family and Dependants) Act 1975
Under I(PFD)A 1975, s 2, the court may order periodical payments from the net estate, award lump sums, direct the transfer of specified property, and vary, to the applicant’s advantage, the trusts by which the deceased’s estate is held. Consequently, there is a broad spectrum of ways in which the court may provide for a claimant, and an award need not be confined to a
Private Client
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