Legal Practice Notes

There are several routes, both uncontested and contested, to remove a personal representative; below is an outline of each method. Renunciation An executor can disclaim the right to apply for a grant of probate by a signed, witnessed written renunciation filed at the probate registry (see Practice Note: Removal, renunciation and retirement of personal representatives). Renunciation is barred where the executor has already intermeddled with the estate (see Practice Note: Intermeddling in an estate). By contrast, an administrator need not make any statement about intermeddling. A template for administrators’ renunciation appears in Form PA16. If an executor declines to renounce or to extract probate at that stage, the proving executors may obtain probate with power reserved to that executor instead (see Practice Note: The type of grant needed). Passing over–section 116 Senior Courts Act 1981 Under section 116 of the Senior Courts Act 1981 ( SCA 1981), the court can, in...

A trustee can be removed against their wishes in the following ways: under an express power in the trust instrument under section 36(1) of the Trustee Act 1925 ( TA 1925) by court order under TA 1925, s 41 by direction of the beneficiaries under section 19 of the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996) Removal should not be undertaken lightly. Misconduct is not required: tension among the trustees may constitute sufficient grounds. However, a disagreement between the trustee and the beneficiaries about how the trustee exercises their discretion will generally not be enough on its own, though it can be considered. The overriding concern is always the beneficiaries’ welfare. Express power in the trust instrument Although TA 1925, s 36(2) expressly anticipates a power to remove trustees, in practice it is uncommon for a...

ARCHIVED: This Practice Note sets out the effect of the Wills Act 1837 ( Electronic Communications) ( Amendment) ( Coronavirus) Order 2020 (the WA 1837 Amendment Order), SI 2020/952, and the Wills Act 1837 ( Electronic Communications) ( Amendment) Order 2022, SI 2022/18. They amend section 9 of the Wills Act 1837 ( WA 1837) to state expressly that the remote witnessing of Wills is permitted during the coronavirus ( COVID-19) pandemic. Background to the changes WA 1837, s 9 ( Section 9 – Signing and attestation of wills), as it stood immediately before the WA 1837 Amendment Order, SI 2020/952, provided that no will was valid unless: it was in writing and signed by the testator, or by another person in his presence and by his direction; it appeared that, by his signature, the testator intended to give effect to the will; the...

This Practice Note explores the use of virtual and electronic signatures in property transactions, and highlights the practical considerations that arise when deploying virtual or e-signatures to sign property contracts and to execute property deeds. For fuller material and analysis on electronic signatures and virtual signings, see Practice Notes: Virtual execution of documents and Electronic signatures. For general guidance on executing property contracts and deeds, see Practice Notes: Contracts for the sale of land—formation, signature and variation and Property deeds—use and execution of deeds in property transactions. See also Precedent: Guide to executing deeds and documents in property transactions. HM Land Registry and accepted signatures HM Land Registry sets specific rules for the use of virtual or electronic signatures across a range of deeds and paperwork, including: most registrable property deeds application forms, consents and certificates statements of truth powers of...

Archived This archived Practice Note examines when a remittance has arisen for the remittance basis of taxation. In determining this, reference must be made to the Conditions contained in section 809L of the Income Tax Act 2007 ( ITA 2007). ITA 2007, s 809L sets out four condition clauses: Conditions A and B, which operate together, and Conditions C and D, which apply independently. This Note concentrates on Conditions C and D, as well as the exclusions that apply to them... Abolition of remittance basis from 6 April 2025 The remittance basis of taxation was abolished for UK-resident, non-domiciled individuals with effect from 6 April 2025. The final year in which the remittance basis can be claimed is the 2024–25 tax year. From 6 April 2025, a new four-year regime, commonly known as the foreign income and gain ( FIG) regime, will be...

Register your charity A charity must register with the Charity Commission if either its gross income reaches at least £5,000 a year, or it is a charitable incorporated organisation ( CIO) located in England or Wales. There are particular requirements and actions that must be undertaken to ensure the application is correct and that it will proceed smoothly and swiftly. The table below highlights what you must consider to proceed carefully beforehand. The following points set out the information you should consider to move forward. Start the application online by visiting Charity Commission guidance: Register your charity and review the guidance provided. Your initial actions will be: (a) confirm that a charity is genuinely the right structure for your aims, rather than other options—see: What is a charity?—overview; and (b) decide whether you are eligible by reference to matters such as the intended public benefit and...

On 1 August 2022, the register for overseas entities came into operation. Any overseas entities intending to purchase, dispose of, transfer, or mortgage land or property in the UK were required to enrol with Companies House and state their registrable beneficial owners or managing officers by 31 January 2023 (thereby marking the formal close of the register’s transitional period). Separately, it should be noted that an overseas company must also be recorded at Companies House if it sets up an ‘establishment’ in the UK. An establishment means a branch within the terms of the Eleventh Company Law Directive, or a place of business that is not a branch. That filing obligation arises under the Overseas Companies Regulations 2009. It is wholly separate and distinct from the regime outlined here concerning overseas entities that hold property in the UK. For more detailed...

The court's power to rectify A claim for rectification is not, strictly speaking, a probate claim, but it falls under that wider category as an extension of a want of knowledge and approval claim where a mistake has arisen in the drafting of a Will. For deaths after 31 December 1982, section 20 of the Administration of Justice Act 1982 ( AJA 1982) allows rectification. The court may amend a Will if satisfied it is framed in a way that does not give effect to the testator’s intentions because of: a clerical error; or a failure to comprehend his instructions, and can order changes so the Will achieves those intentions. Despite the affirmative tenor of that provision, this rectification power is discretionary, and the circumstances in which it applies are set out in AJA 1982, ss 20(2)–20(4). Under section 20(2), an...

Reasonable financial provision In the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) there is a single basis for bringing a claim, namely that the way the deceased’s estate is distributed, whether under a will, the intestacy rules, or a mixture of both, fails to provide the applicant with reasonable financial provision. Once an individual clears the initial obstacle of establishing that they are entitled to apply, they must then demonstrate that the deceased did not make reasonable financial provision for them. This has given rise to a body of case law. I( PFD) A 1975, s 1(2) draws a line between a deceased’s spouse or civil partner and all other categories of applicant. For a spouse or civil partner, reasonable financial provision means such financial support as it would be reasonable, in all the...

Reasonable excuse A taxpayer is not charged a penalty for late payment of tax where they can demonstrate a reasonable excuse for failing to comply with the legislation. For fuller guidance on late payment penalties—and specific updates for sole traders and landlords who will be required to use Making Tax Digital for Income Tax—see Practice Notes: Late payment penalties—income tax, capital gains tax and corporation tax; and Late payment penalties— PAYE, NICs and construction industry scheme. As legislation does not define reasonable excuse, its scope is continually reassessed by the courts and must be judged with regard to all the circumstances of the particular case. Historically, HMRC adopted a strict stance on what amounted to a reasonable excuse for the late filing of a tax return or the late payment of tax. During HMRC’s review of the...

The Ramsay principle (or Ramsay doctrine) Lexis+® UK Tax thanks Nigel Doran of Macfarlanes LLP for his input on an earlier version of this Practice Note. The views set out remain those of Lexis+® UK Tax. This Practice Note has since been reviewed and updated by Aparna Nathan, KC, Devereux Chambers. The Ramsay principle denotes a judicial approach to construing legislation in cases concerning tax avoidance. It originated with the House of Lords’ landmark ruling in WT Ramsay in 1981. The House of Lords restated the approach in BMBF v Mawson in 2004, and, as a result, some decisions describe the principle by reference to BMBF (or Mawson) rather than Ramsay. For consistency, this Practice Note, and related Practice Notes, use the term ‘ Ramsay principle’. In broad outline, the Ramsay principle can be summarised as: consider the...

Quick succession relief ( QSR), not to be mistaken for taper relief, applies where a transfer of value is subjected to a further inheritance tax ( IHT) charge within five years of the original gift or chargeable transfer. Consider a case where someone receives a lifetime gift (or inherits on a death) in year one, with IHT settled at that time, and in year three that recipient dies still owning the asset so it falls into their taxable estate and IHT is again due. QSR provides relief against this second IHT bill, calculated by reference to the IHT paid on the earlier transfer and the interval between the two events. How the relief works and when it applies Relief for successive charges, also called QSR, is available when the value of a person’s estate has been increased by a chargeable...

Why use a QROPS? In reality, numerous Qualifying Recognised Overseas Pension Schemes ( QROPSs) are primarily personal pensions or retirement annuities, often promoted to individuals living outside the UK. A defining feature is that a QROPS is the sole overseas vehicle permitted to receive a ‘recognised transfer’ from a UK-registered pension arrangement. This restriction is set out in the Finance Act 2004 ( FA 2004) itself; section 169 expressly defines a ‘recognised transfer’ as moving sums or assets from one registered pension scheme to another, or to a QROPS. For more detail, refer to Practice Note: International pension transfers. Consolidating and moving pension rights and accrued benefits is a principal reason to choose a QROPS rather than other overseas pension options. As a result, they are frequently selected to facilitate recognised transfers and to consolidate benefits. This makes them a practical choice for non- UK...

These are occupational arrangements for staff working in central or local government, a nationalised industry or other statutory bodies. They encompass pension schemes established by statute for: armed forces ( AFPS) police firefighters civil service ( CSPS) teachers local government ( LGPS) National Health Service Public sector pension schemes cover roughly 12 million people, including about 5 million active members. The LGPS in England and Wales is the largest public sector pension scheme. Key features Often termed unfunded—in essence, there is no pot built from past worker payments to meet current pensions; benefits are met by today’s employees and the employer (effectively the state) on a pay‑as‑you‑go basis Most operate in deficit as contributions do not fully cover current pension outgoings, with the Treasury making up the shortfall The LGPS is distinct as it holds...

The framework of the people with significant control ( PSC) regime Introduced on 6 April 2016, the people with significant control ( PSC) regime is grounded in Part 21A of the Companies Act 2006 ( CA 2006), as updated by sections 81–83 and Schedule 3 of the Small Business, Enterprise and Employment Act 2015 ( SBEEA 2015), and by sections 44, 51 and Schedule 2 of the Economic Crime and Transparency Act 2023 ( ECCTA 2023). It was devised to curb opacity in corporate ownership, where records often noted only the legal, not the beneficial, holder of shares. The PSC register provides accurate, up-to-date details on who ultimately owns or controls companies and other entities, and this information is publicly accessible on the central registry at Companies House. It informs investors weighing an investment and assists law enforcement during money laundering...

When administering an estate, some assets and liabilities can be easily missed. Beyond establishing what is owned and owed, the personal representatives ( PRs) must decide which assets to deal with first, and handle issues linked to the deceased’s lifetime that come to light, such as ongoing litigation. Interests arising under a trust The deceased may have benefited under a trust and, in certain cases, the value of that interest is brought into the estate for inheritance tax ( IHT) on death. There are several forms of trust that might have included the deceased as a beneficiary, namely: Discretionary trust—where the PRs know the deceased was part of a class of potential beneficiaries (or held a non-qualifying interest in possession), they should inform the trustees of the death. The trustees may ask for the return of trust property the deceased used. As the...

This How to complete an action for proving the tenor of a lost Will or codicil guide has been produced in partnership with Fergus Colquhoun of Terra Firma Chambers. It offers a worked example of an action to establish the tenor of a lost codicil in Scotland. It also sets out guidance on the degree of narrative and specification that ought to be included within the action. It is intended to be read in conjunction with Precedent: Style for action for proving the tenor of lost Will— Scotland. Example of completed action The fully completed example action can be accessed here in full as a reference: Choice of Sheriff Court The appropriate Sheriff Court is the competent court with jurisdiction over the locality in which the deceased was domiciled on the date of death. Who to identify as the Pursuer Anyone with a relevant interest may raise the...

After a property and financial affairs or health and welfare lasting power of attorney ( LPA) has been registered by the Office of the Public Guardian ( OPG), the OPG will send confirmation of registration to the donor and the appointed attorney(s). When an attorney wishes to act for the donor, they must show the relevant person or organisation that they have authority to do so. They can do this by either of the following: Presenting the original LPA or a certified copy of the registered LPA Using the government’s online service ‘ Use a lasting power of attorney’ Both options are outlined below. Online ‘use an LPA’ service This OPG service gives individuals or organisations access to an online summary of the LPA and enables the attorney(s) and/or the donor to monitor who has been granted access. The service is only available for LPAs registered on or after 1...

What is an unincorporated association? In Koeppler, an unincorporated association was characterised as “a group of people linked by recognisable rules and an identifiable membership”. This wording distils the longer definition set out in Burrell. From these (and other) formulations, it can be concluded that an unincorporated association must: consist of at least two members involved in a non-commercial endeavour with some permanence; and be governed by contractual rules that bind all members. Many sports clubs, members’ clubs, political parties, charities and not-for-profit organisations operate in this way, commonly with little, if any, formal structure. No separate legal capacity An unincorporated association does not possess a legal personality distinct from its members. This absence of separate capacity creates a range of difficulties. A notable issue is that the association cannot hold property in its own name; instead, property must be held by...

FORTHCOMING CHANGE: Following the Government’s response to the Ministry of Justice and the Office of the Public Guardian ( OPG) consultation, Modernising Lasting Powers of Attorney, the Powers of Attorney Bill received Royal Assent on 18 September 2023, becoming the Powers of Attorney Act 2023 ( PAA 2023). Once commenced, PAA 2023 will amend the Mental Capacity Act 2005 ( MCA 2005) to create a more modern lasting power of attorney ( LPA) service. The reforms will include: introducing regulations so those involved in making an LPA can choose to sign digitally or on paper; removing attorneys’ ability to register an LPA, so registration is permitted only by the donor; bringing in regulations on identification verification requirements for registration applications; establishing a single route for registration objections via the OPG and expanding who may object to include third parties, not only those...