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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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Introduction Settlements in trusts, estate and inheritance conflicts are frequently reached after the parties take part in alternative dispute resolution ( ADR), commonly through mediation. It is vital that those involved and their advisers (and, ideally, the mediator) remain alert to the legal and procedural steps required to make the agreement binding and to bring the dispute to a formal close. Judicial approach to ADR and sanctions ADR is a key mechanism for resolving trusts, estates and inheritance matters. It features prominently in the Association of Contentious Trusts and Probate Specialists’ Practice Guidance for the Resolution of Probate and Trust Disputes (the ACTAPS Code), and sits at the heart of the court’s case management powers in advancing the overriding objective under the Civil Procedure Rules ( CPR). See: ACTAPS Code (paras 2.9–2.13) Practice Direction Pre- Action Conduct and Protocols, paras 8–11 CPR 1.3, 1.4(1), 1.4(2) and...
Mediation has become increasingly prevalent as a form of alternative dispute resolution ( ADR) in the UK since the Access to Justice Report. It is consistently promoted by the courts as part of the overriding objective under CPR 1.4(2)(e). The courts also now hold explicit powers to direct parties to ADR under CPR 3.1(2)(m), and parties are required to consider it under the Practice Direction – Pre- Action Conduct and Protocols. This is further reflected in the Chancery Guide, para 10.1. While the Civil Procedure Rules do not provide a specific pre-action protocol for probate and trust disputes, the Association of Contentious Trust and Probate Specialists has issued a Code to support practitioners. It states at 2.18 that parties should at all times evaluate whether ADR is suitable and note that the court may now order participation in ADR. ADR takes various forms,...
The central difficulty for personal representatives ( PRs) and/or beneficiaries when an actual or potential probate claim arises is deciding how to preserve the deceased’s estate, or progress the administration, while the action is unresolved. There are several court-based options available to interested parties. Special grants Administration pending suit A party involved in a probate dispute about the validity of a Will, or concerning the obtaining, recalling or revoking of any grant, may apply to the court for an order appointing an administrator of the testator’s estate pending determination of the proceedings. That administrator will be subject to the court’s direct control and must not distribute the estate, or any part of it (including legacies), without the court’s consent. Typically, the appointee is a professional. The Supreme Court Act 1981 ( SCA 1981) permits the court to order reasonable remuneration for them. The function of this...
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...
Administration actions-misuse of lasting powers of attorney- Q& As During the course of administering an estate, it may become apparent that, while the deceased was alive, their attorney misapplied or diverted their funds. This Practice Note brings together Q& As that address issues linked to suspected misuse of a lasting power of attorney ( LPA) uncovered during estate administration. The same methods and principles will generally apply to Enduring Powers of Attorney. For further guidance on contesting lifetime transactions after death, see Practice Note: Challenging lifetime dispositions. For direction on the misuse of LPAs during the donor’s lifetime, see Practice Note: Misuse of EPAs and LPAs and its prevention. Note that although new Q& As are added to this Practice Note as they arise, individual Q& As are not currently maintained and each states the law as at the date given. Who should bring a claim against an...
Jurisdiction The probate authority of the courts arose within the Ecclesiastical jurisdiction that had operated since the fourteenth century. Yet the procedures there were wholly unlike those in their sister Courts of Chancery Law and Chancery. Notably, the Ecclesiastical Courts were guided by ‘… the demands of the law and the conscience of the Court.’ ( Wyatt v Ingram, sub nom Ingram v Wyatt (1832) 3 Hag Ecc 466; 1 LJ Ch 135). This equitable stance evolved to safeguard the deceased’s genuine final intentions against relatives’ contrary and self‑interested conduct. Prior to 1858, the authority to issue or revoke probate of wills, or letters of administration over the estates of deceased persons, rested with about 370 ecclesiastical or secular courts or officials in England and Wales, in addition to the Prerogative Courts of Canterbury and York. Following the Court of Probate Act 1857, which took effect on 11...
The High Court The Chancery Division of the High Court, functioning from 2 October 2017 within the Business and Property Courts, deals with a wide spectrum of matters, notably contentious probate work and disputes concerning estates and trusts. Practitioners commencing claims in the Chancery Division should be conversant with the Civil Procedure Rules 1998 ( CPR) and the Chancery Guide, which offers practical detail and direction not set out in the CPR or the PDs. The Chancery Guide is intended to be read alongside the CPR and PDs. In particular, CPR 57 together with the Chancery Guide, para 23, governs probate and inheritance claims, while CPR 64 together with the Chancery Guide, para 25, addresses estates and trusts. In 1862, the first Rules for Contentious Business were introduced. In 1873, the Probate Court was incorporated into the Probate, Divorce and Admiralty Division of the High...
Personal representatives ( PRs) may pass assets to beneficiaries using any route that would be open for a lifetime disposal of the same property. There is also one transfer route unique to PRs: the assent... Assent of pure personalty An assent signals that the PRs do not need a particular asset for administering the estate and that it may pass to the beneficiary named in the testator’s Will... No formality is required for an assent of pure personalty. It can be... in writing given orally inferred from conduct An assent brings the gift into effect for the beneficiary. Where necessary, additional steps to convey the legal title must still be satisfied. Once a valid assent has been made, the PRs then hold the asset on trust pending completion of those further requirements... For certain items, a verbal assent, or simply allowing the...
The residuary estate Under Section 33 of the Administration of Estates Act 1925 ( AEA 1925), the residuary estate means the balance of money and any investments currently standing in place of it, together with any unsold portion of the deceased’s estate which is not needed to settle funeral, testamentary and administration costs, debts, other liabilities, and pecuniary legacies. The residue is not confined to cash; it commonly embraces further property that remains neither sold nor distributed during administration. After all liabilities (including tax) and legacies have been discharged, the personal representatives ( PRs) must identify the contents of the residue, namely the assets or sum left to be shared among the residuary beneficiaries. To determine the residue, the PRs should first: finalise the tax position, and address administration expenses Income tax to the date of death Completing the tax return If the PRs have been unable to use the Tell Us Once...
Identification of beneficial interests The personal representatives ( PRs) of an estate must establish: the beneficiary or beneficiaries who are entitled to each specific legacy the precise entitlement of each beneficiary the point in time when each legacy ought to be paid out Executor's year PRs have a minimum of one year from the date of death before beneficiaries may require any distribution. Even after that year has passed, the PRs might still not be ready to distribute the estate. Deciding to distribute Before starting to distribute legacies, PRs should assess whether distribution should be deferred because other administrative matters remain unfinished or potential issues could arise, such as: unpaid tax liabilities outstanding debts unknown beneficiaries rectification of the Will a family provision claim under the Inheritance ( Provision for Family and Dependants) Act 1975 a variation or...
Although beneficiaries cannot ordinarily amend the terms of a testator’s Will or the intestacy rules, save perhaps through a court order following a claim under the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975), those who would benefit under a Will or on intestacy can agree a post-death rearrangement to alter the practical effect of the Will or intestacy provisions... instruments of variation disclaimers distributions pursuant to precatory trusts distributions from discretionary Will trusts claims under I( PFD) A 1975 Where the parties agree on a revised outcome, they often opt for a formal post-death arrangement rather than the original beneficiary making a lifetime gift, to secure tax mitigation. Subject to specified conditions, certain rearrangements can be treated for tax as if made by the deceased, thereby avoiding the risk of further...
Insolvent estate An estate is insolvent where, once all assets are realised, there is not enough to discharge in full every debt and other liability attached to the estate. An estate is not treated as insolvent if the debts and liabilities can be settled even though no legacies are payable. If an estate proves insolvent, the beneficiaries named in the Will, or those entitled on intestacy, will receive nothing, and not all creditors will be paid in full. Personal representatives ( PRs) must satisfy creditors in the prescribed order, or risk personal liability for any unpaid higher‑ranking debts. Where there is any possibility of insolvency, PRs must follow the prescribed sequence before paying any debts or liabilities. For an overview and more detail on insolvent estates, including the insolvency test and administration methods, see Practice Note: Insolvent estates and bankrupt...
Continuing significance of domicile Within English private international law and the succession of a deceased person’s assets, domicile remains a pivotal consideration, even with the transition to a residence‑based system for determining inheritance tax ( IHT) liability from 6 April 2025. For details on the tax position relevant to administering estates that include overseas assets, see: Tax in relation to foreign assets. Common law and civil law principles affecting foreign estates Personal representatives ( PRs) will encounter foreign estate issues where assets are held abroad, where the deceased was situated overseas or maintained connections abroad (such as nationality, residence or domicile), and where beneficiaries are outside the UK. PRs handling cross‑border matters need familiarity with the practical principles for administering the estate of a foreign domiciliary with UK property, and with the main considerations where a person domiciled in England and Wales dies leaving foreign assets. For...
Where an executor cannot obtain a grant of probate to the testator’s Will, a fixed hierarchy applies for others to do so by seeking a grant of letters of administration (with Will annexed). See Practice Note: Applications for letters of administration with Will annexed. After the executor, those next in priority under NCPR 1987, r 20 are persons with an interest in the residuary estate. Whether a residuary gift has been made can be ambiguous, particularly when the Will has not been professionally prepared. It is therefore necessary to consider what amounts to a gift of residue. Is there a residuary gift? Typically, a Will contains an express disposition of the residue. There are familiar indicators in the language used, and it is generally accepted that many forms of wording can denote the whole or remainder of the testator’s real and personal property,...
When a grant of letters of administration with Will annexed will be made A grant of letters of administration with Will annexed is issued when a Will is proved by someone other than an executor. This presupposes the testator left a valid Will and did not die wholly intestate. There are defined circumstances in which such a grant will be made, including where: the Will appoints no executor every appointed executor, or the sole one, died during the testator’s lifetime, or survived but died without proving the Will-often occurring where spouses appoint each other and make no provision for a substitute the sole or all appointed executors have renounced probate, or, having been cited to accept or refuse probate, have not appeared to the citation the purported appointment of an executor is void for uncertainty the court,...
Current probate fees The following charges presently apply: Application for a grant of probate or letters of administration where the estate exceeds £5,000 net: £300 (note special exemptions below). Duplicate or second grant for the same deceased: £21. Entry or extension of a caveat: £3. Standing search application: £3. Deposit of Wills: £23. Inspection of a Will or other document held by the registry: £23. Copies: For a document relating to a named individual: £16 per copy, certified or not (the £1.50 fee applies before 17 November 2025). For documents of individuals not named in the request, supplied electronically: £1.50 per copy, certified or not. Settling documents: £5 per...
Role of the court The High Court exercises jurisdiction over probate and letters of administration, encompassing all contentious and non-contentious matters relating to: testamentary causes and matters the grant, amendment or revocation of probate and letters of administration, and the real and personal estates of deceased persons Probate jurisdiction The probate jurisdiction of the High Court is divided between the Family Division and the Chancery Division (and the County Court). The Family Division handles non-contentious, or common form probate work, while the Chancery Division deals with contentious, or solemn form probate. See Practice Note: What are common and solemn form probate? Probate jurisdiction- Family Division The key issues are: whether a document is admissible to probate who is entitled to a grant of representation whether a grant already issued should be revoked Right of interpretation- Family Division When granting...
Potential claims against personal representatives Personal representatives ( PRs) can be exposed to liability in numerous ways, whether through actions taken or failures to act during the administration of an estate, or in respect of debts left by the deceased. See Practice Note: Personal representatives-liability. Such exposure may exist irrespective of whether PRs were named in the deceased’s Will or came to the role through the priority order on an intestacy. A frequent difficulty, irrespective of appointment under a Will or entitlement by priority on an intestacy, arises when a beneficiary issues a claim after distribution because they were unknown to the PRs and the family at the time. A bequest to ‘my children’ may look unequivocal, yet the deceased might have had an additional child, entirely undisclosed and not discoverable by routine enquiries (for example, where no members of the deceased’s family knew of that...
Is there a Will? The initial task for the deceased’s relatives, or the personal representatives (if they are different people), is to look through the deceased’s home and paperwork for an original last Will, a duplicate, or any correspondence indicating that a Will exists. Relevant material might sit within electronic communications, so, where access can be obtained, checking the deceased’s email inbox and computer folders is prudent. It is thought that more than half of UK adults have no Will. If that remains true at death, the estate falls into intestacy. Even where a Will is in place, if it does not dispose of every part of the estate, a partial intestacy can still arise. Although securing a grant for an intestate estate is not typically difficult, the presence of a Will tends to streamline matters and clarifies what the deceased intended for family...
On a person’s death, it must first be determined whether they left a Will and whether that Will is legally valid. If no valid Will exists, the deceased is intestate and their estate is dealt with under the intestacy provisions set out in Part IV of the Administration of Estates Act 1925 ( AEA 1925). Intestacy can create difficulties, including uncertainty over who will care for minor children and the distribution of assets in a manner that may not reflect the deceased’s intentions... LAW COMMISSION CONSULTATION The Law Commission for England and Wales issued a Consultation Paper in July 2017 and, after a pause in 2019, a Supplementary Consultation Paper was released on 5 October 2023. The following topics are being examined: testamentary capacity; the formal requirements for a valid will, including consideration of wills made...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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