Legal News

Lewisham and Greenwich NHS Trust and another v PG (by the Official Solicitor as her litigation friend) [2024] EWCOP 49 What are the practical implications of this case? The decision offers a clear, workable illustration of a best interests appraisal in circumstances where any investigation and/or treatment would have a profoundly negative effect on a person who lacks capacity. Reaffirming Baroness Hale’s approach in Aintree v James [2013] UKSC 67, [2014] AC 591, Cobb J emphasised the need to consider welfare in its ‘…widest sense, not just medical but social and psychological..’ and for decision-makers to ‘…try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be…’. The judgment stands as a strong reminder to NHS Trusts, and those advising and representing them, of the duty to move swiftly in...

Gazi v Mc Kenzie [2024] EWHC 2103 ( Ch) What are the practical implications of this case? Executors frequently become embroiled in wrangles between competing beneficiaries concerning the deceased’s assets, the rights to them, and their distribution. Yet, as this judgment demonstrates, the dispute can swiftly swell far beyond the real monetary value at issue. In such circumstances executors must take great care, especially when legal expenses start to mount while attempting to resolve the problem and complete the estate’s administration. The law provides several avenues to shield executors in scenarios like this; the appropriate safeguard will ultimately depend on the particular questions that arise and on the respective positions of the parties. Proportionality therefore matters, and unchecked contention risks eclipsing the estate’s limited stakes and rapidly depleting resources through avoidable expenditure. Although executors may view the situation as...

In this issue: Probate Trusts Court of Protection UK taxes for Private Client HMRC Manuals updates Tax avoidance, evasion and non-compliance Contentious trusts and estates Pensions, insurance and tax efficient investments International Question of the week Additional Private Client updates this week Daily and weekly news alerts Lex Talk®Private Client: a Lexis+® community New and updated content Dates for your diary Trackers Latest Q& As Useful information Probate HMRC updates form IHT400 HMRC has released a revised IHT400, the form used to apply for probate ( England and Wales) or confirmation ( Scotland) where inheritance tax is payable, or where the estate is not an ‘excepted estate’. A new note at page 15 explains that once HMRC has processed the IHT400, it will issue an...

See Q& A: Can a beneficiary who is also a co-executor of a Will make a claim pursuant to section 14 of the Trusts of Land and Appointment of Trustees Act 1996, where the property has not been transferred into the names of the executors? Section 14 of the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996) concerns court applications for orders. It allows any trustee of land, or any individual with an interest in property held on a trust of land, to apply to the court for an order under this provision. On such an application, the court may make whatever order it considers appropriate: regarding the exercise of any trustee functions (including an order dispensing with any duty to obtain consent from, or to consult with, any person in connection with the exercise of those...

In this issue: Probate Powers of attorney and advance decisions Court of Protection Spouses, civil partners and cohabitants UK taxes for Private Client HMRC Manuals updates Budgets and Finance Bills Insolvency— Private Client Digital assets and cryptoassets Pensions, insurance and tax efficient investments International Question of the week Additional Private Client updates this week Daily and weekly news alerts Lex Talk®Private Client: a Lexis+® community New and updated content Dates for your diary Trackers Latest Q& As Useful information Probate Law Society welcomes shorter probate times but calls for further progress The Law Society of England and Wales has responded to HMCTS’s latest monthly management information on probate, noting average processing times fell to 9.3 weeks in July 2024, down from 14 weeks in the same month last...

What is the background to the FCA’s consultation? Automatic enrolment ( AE) launched in 2012 channelled more default saving into DC pensions. Default design in these schemes is sticky; members must overcome behavioural biases to make active choices. Evidence, including a recent Pensions Regulator blog, indicates most AE savers remain in entry‑level defaults such as the default investment strategy. Although steps since AE—such as the Occupational Pension Schemes ( Charges and Governance) Regulations 2015 ( SI 2015/879)—have been made, a narrow emphasis on charges has not invariably delivered better outcomes. Since 31 December 2021, trust‑based schemes under £100m in assets have faced enhanced value assessments under the Occupational Pension Schemes ( Administration, Investment, Charges and Governance ( Amendment) Regulations 2021 ( SI 2021/1070), yet this has done little to spur DC consolidation or strengthen value measures. Differences between schemes mean some members enjoy...

See Q& A: A will leaves the deceased's beneficial interests in various properties to a trust Before the administration of the estate is finalised (i.e. whilst the properties are still vested in the executors), the trustees plan to appoint their chose in action relating to certain of the properties concerned to a specified beneficiary. What steps and documents are required to put this appointment into effect? This Q& A does not cover the tax implications of the proposed appointment......

Mc Cabe v HMRC [2024] UKUT 280 ( TCC) The appellant, M, was chief executive of a property development and investment group. On 4 April 2006 he relocated to Belgium and, over a period of the next seven years, he leased or purchased both residential and office premises within Brussels and established a Belgian personal service company to supply consultancy services to group entities. He remained married and continued to spend regular and substantial periods with his wife, who did not relocate to Belgium (and she retained legal title to the UK family home). M moved to Belgium to expand the group’s European business operations but also as part of tax planning specifically designed to ensure he would not incur liability to CGT on a share disposal by staying non- UK resident for five whole tax years and thereby...

Re AA (withdrawal of life-sustaining treatment: no best interests decision) [2024] EWCOP 39 ( T3) What are the practical implications of this case? This judgment usefully and clearly reaffirms a number of fundamental principles that can at times be overlooked in serious medical treatment applications in the Court of Protection, namely: The court’s role is strictly confined to selecting between treatment choices actually available to the patient. Where a clinician offers no alternative option, there is no best interests decision for the court to determine on the patient’s behalf; A patient cannot demand that a doctor administer any particular treatment, and nor can the court compel it: see Re Y [2018] UKSC 46; It is an abuse of process to seek a best interests declaration under the MCA 2005 to try to persuade a clinician to provide treatment when none is being offered: see AVS v A NHS...

In this issue: Probate Trusts Court of Protection Elderly and vulnerable clients UK taxes for Private Client HMRC Manuals updates Budgets and Finance Bills Pensions, insurance and tax efficient investments Scotland, Wales and Northern Ireland International Question of the week Additional Private Client updates this week Daily and weekly news alerts Lex Talk®Private Client: a Lexis+® community New and updated content Dates for your diary Trackers Latest Q& As Useful information Probate HMRC updates schedule IHT430 HMRC has issued a revised IHT430 schedule, used when claiming or choosing not to apply the reduced rate of inheritance tax where at least 10% of an estate is left to charity. The section on qualifying charities has been amended following legislative changes, meaning gifts to EU charities no longer secure IHT...

Audrey Flowers v Bria Scavella [2024] UKPC 25 What are the practical implications of this case? Holding the family home as a joint tenancy is widespread, and so too is a mortgage secured against it. A frequent issue is whether the surviving co-owner must redeem the mortgage, or whether the estate should meet all or part of that liability. This ruling confirms that AEA 1925, s 35 does not, of itself, impose liability on the surviving joint tenant. That is because the section operates only where the entitlement to the property comes through the deceased’s estate (eg via their Will), and not where the entitlement arises independently of it. In a joint tenancy, the survivor does not, on the other’s death, take the deceased’s share; instead, the deceased’s interest is extinguished and the survivor becomes entitled to the whole. In Audrey Flowers v Bria...

Inheritance tax-gifts with reservation When an individual makes a gift of property (not limited to land, but property in the broader sense for these purposes), that asset will only be property subject to a reservation if, at any point during the relevant period, the property is not enjoyed to the entire exclusion, or virtually to the entire exclusion, of that individual and of any benefit to them by contract or otherwise (see section 102(1)(b) of the Finance Act 1986 ( FA 1986)). Occupation for a few weeks each year by the donor of land that he or she has given away may therefore fall within the 'virtually to the entire exclusion' exception. See Example 1 in IHTM14333. See also HMRC interpretation RI 55 ( November 1993) Inheritance tax-gifts with reservation......

Re PQ (court authorised DOL: representation during review period) [2024] EWCOP 41 What are the practical implications of this case? Lawyers and practitioners dealing with community deprivation of liberty matters must recognise how vital it is that the individual has an independent representative in place for the whole duration, namely the ‘review period’ (that is, the period between the final order and a planned review). Frequently, this is secured by appointing a rule 1.2 representative pursuant to the Court of Protection Rules 2007. Where no relative or friend can act under rule 1.2 as the appointed representative, the local authority must consider funding a professional representative, for example a Relevant Person’s Representative ( RPR), an Independent Mental Capacity Advocate, or a Care Act advocate. If the authority declines to meet that cost in the circumstances, the court must decide what...

Equity Advisory Ltd & another v HMRC [2024] UKFTT 784 ( TC) A non-party to a substantive appeal asked that specified information be redacted from the decision, which had not yet been published. The non-party was a bank, and the context of the appeal involved the bank making a payment to resolve a claim brought against it. The bank applied to the FTT for an order requiring the final decision to exclude the bank’s identity, the amount of the settlement, and any material that could enable members of the public to discern either the bank or the settlement sum, arguing that these were commercially sensitive issues. The application was made......

In this issue Probate Trusts Court of Protection UK taxation for private clients HMRC manuals: updates Art and heritage property, landed estates and farming families Pensions, insurance and tax‑efficient investments Scotland, Wales and Northern Ireland International Question of the week Further Private Client updates this week Daily and weekly news alerts Lex Talk® Private Client: a Lexis+® community New and updated content Dates for your diary Trackers Useful information Probate Unique codes for probate applications can now be issued by email. HMRC’s Trusts and Estates Newsletter ( August 2024) confirms that IHT400 filers may provide an email address and sign a disclaimer so HMRC can send the unique code required for the probate application electronically. See: LNB News 28/08/2024 16. Source: HMRC Trusts and Estates...

See Q& A: What constitutes consideration for money or money’s worth within the meaning of IHTA 1984, s 142(3) which would prevent the ‘reading back’ of a variation of a Will or intestacy made under IHTA 1984, s 142(1)? Section 142 of the Inheritance Tax Act 1984 ( IHTA 1984) sets out a particular approach for inheritance tax where a legatee named in a Will redirects some or all of their legacy. In these circumstances, provided the conditions in IHTA 1984, s 142 are satisfied, the Will is deemed to have made the legacy—or an increased legacy, as appropriate—directly to the person who receives the redirected gift, and to have made a correspondingly smaller legacy to the original beneficiary. In effect, for inheritance tax purposes, the arrangement is treated as though the Will itself had conferred the adjusted entitlement from the outset, with the...

Marks ( Executor of Hilda Marks) v Revenue and Customs Commissioners [2024] UKFTT 706 ( TC) What are the practical implications of this case? Lower rate matter The case underscores the need for precise Will drafting where charitable aims are involved. It is crucial to set out clear directions about how prospective beneficiaries are to be treated and how the charitable gift is to be applied. The tribunal also serves as a caution that attempts to unwind arrangements will not be entertained where unfavourable tax results—although contrary to the deceased’s wishes—were foreseeable by professional advisers... BPR matter With looming changes to how holiday lets are categorised and taxed, focus may again fall on whether such a property business amounts to trading. That renewed scrutiny is unlikely to shift the stance already adopted by the courts in IHT cases......

During the roughly 90-minute hearing in Washington, DC, most of the time was spent testing the government’s assertion that it enjoys sovereign immunity from the claim. The Administrative Procedure Act ( APA) removes that shield for certain types of claims, but US Department of Justice lawyer Cassandra Snyder argued that the former citizens are blocked from obtaining money damages under that law, even though they could seek specific monetary relief. Nevertheless, Snyder said, the claimants have not identified a statute that would entitle them to a defined refund of the sums they paid to surrender their citizenship. Instead, she said, ' Plaintiffs are asking this court to decide that US$1,900...is a fair refund'. US District Judge Carl J Nichols reflected more than once that the point was an 'odd question' in the sovereign immunity setting. He noted that, 'in a way', the...

In this issue: Trusts UK taxes for Private Client HMRC Manuals tracker Tax avoidance, evasion and non-compliance Digital assets and cryptoassets International Question of the week Additional Private Client updates this week Daily and weekly news alerts Lex Talk®Private Client: a Lexis+® community New and updated content Dates for your diary Trackers New Q& As Useful information Trusts Court dismisses claim for declaration of beneficial interests in shares ( Fulstow v Francis) In Fulstow v Francis [2024] EWHC 2122 ( Ch), the Chancery Division rejected the claimants’ action concerning shares in Capital Land, a company that owns development land. The claimants asked for declarations confirming their beneficial interests in Capital Land shares held by the defendant, together with an order compelling him to sign a stock transfer form to pass to them the shares they asserted were beneficially theirs. The High Court found there was no binding agreement for the transfer of 25% and 7% of Capital Land’s shares in return for...

See Q& A: If a donor transfers their property yet pays rent to remain in continued occupation as a means to avoid the IHT gift with reservation of benefit ( GROB) rules, and it is determined that the rent paid was not a full open-market rent (either at the start or owing to a later failure to review it), what fraction of the property's value would be regarded as being included within the donor’s estate under the GROB rules for IHT?......