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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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What is a trading subsidiary? A trading subsidiary is a company owned and controlled by a charity, or occasionally by several charities, set up to carry on trade or business that: the charity cannot itself pursue because of its constitution or concerns about commercial risk and potential liabilities; and/or the charity cannot undertake in a tax‑efficient fashion. Such companies are typically established to generate income for the charity or charities, as they are not subject to the same constraints on trading that apply to charities. A trading subsidiary can be used to: undertake non‑primary purpose trading beyond the small‑scale exemption limits (see the Tax treatment of the charity guidance note) safeguard a charity’s assets from trading risks If the subsidiary company transfers all or part of its profits to the charity (rather than paying a dividend) it will not be charged tax on those...
The Law Society’s Wills and Inheritance Quality Scheme ( WIQS) was introduced in 2013 and operates by means of a series of prescriptive practice policies spanning Will drafting and the administration of estates. The protocols and policies contained within the estate administration section do not lay down a step-by-step method for handling an administration, as the process will vary according to the particular assets and liabilities within the estate, the expertise of those undertaking the work, and any recent changes in the law that may not yet be captured by the protocols. Even so, WIQS supplies a blueprint for the way a practice should approach administration to be able to claim the certification of WIQS. WIQS—general principles As set out by the Law Society, WIQS is intended to create a quality standard for producing Wills and administering estates. It comprises several...
FORTHCOMING CHANGES relating to Making Tax Digital ( MTD) for Income Tax and penalty reform: late payment and late submission penalties : As set out at Spring Budget 2021, the Finance Act 2021 introduces major revisions to the frameworks governing late-payment and late-submission penalties for VAT and income tax. For VAT, these reforms—together with changes that bring late-payment interest provisions for VAT into line with those for income tax—came into force on 1 January 2023 (see Practice Note: VAT penalties)......
Follow the link below to download the training presentation: Contents What is an LPA? Property and financial affairs LPAs Health and welfare LPAs Legal foundation for LPAs How to make a valid LPA Attorneys Substitute attorneys Certificate provider Persons to be notified Responsibilities of attorneys Powers held by attorneys Statutory restrictions on......
FORTHCOMING CHANGE: Further to 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). When in force, PAA 2023 will bring updates to the Mental Capacity Act 2005 ( MCA 2005) to deliver a more modern lasting power of attorney ( LPA) service. The changes 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 only the donor may register; introducing regulations setting identification verification requirements for registration applications; providing a single route for objections to registration via the OPG and widening who can object to include third...
FORTHCOMING CHANGE relating to changes to APR and BPR : At the Autumn Budget 2024 on 30 October 2024, the government announced plans to significantly reduce the level of APR and BPR available on qualifying property from April 2026. Following consultation and subsequent announcements, the existing 100% rate of relief will be limited so it will no longer apply to the entire value of qualifying agricultural or business assets, but will instead only cover the first £2.5m of combined value. For more detail, see News Analysis: Autumn Budget 2024— Private Client analysis — Inheritance tax, and Practice Notes: IHT—agricultural property relief and IHT—business property relief. Even before the announcements made at the Autumn Budget on 30 October 2024, landed estates had long been encountering HMRC challenges to inheritance tax ( IHT) relief claims, while also having to navigate a wholly new...
For broad information on Jersey, consult: Spitz & Clarke Offshore Service: Jersey: Commentary: General information. For details on Jersey cases, legislation and other legal topics, refer to: Jersey Legal Information Board. Legal framework The framework governing Jersey law trusts is primarily contained in the Trusts ( Jersey) Law 1984 (as amended) ( Law), supported by a significant corpus of judicial decisions. While rulings from England and other common law jurisdictions can carry strong persuasive value in Jersey, the Jersey courts have frequently taken an international lead through their trust law judgments, which have, in turn, become highly influential in other jurisdictions......
Taxation regime What factors determine tax liability in your jurisdiction (eg domicile, residence or citizenship)? On the Isle of Man, only residence is relevant for tax purposes. In broad terms, a person is considered resident for Island tax if they: are present for more than six months in any tax year (which ends on 5 April) spend over 90 days per tax year on average across four or more years, with residence then applying from the fifth year arrive on the Island intending to become resident What taxes apply to an individual’s income? For 2025–26, the personal allowance is £14,750. Income above this is taxed at 10% on the first £6,500 of excess and 21% on anything further. Married couples and civil partners can choose joint assessment, which doubles the allowances to £29,500 and defers the higher rate until after £13,000. Personal...
For general information on the Isle of Man, see the Practice Note: Private Client jurisdictional guide— Isle of Man. For information on foundations, including their UK tax treatment, consult the Foundations subtopic. Legal framework Foundations in the Isle of Man arise under statute, having been brought into Manx law by the Foundations Act 2011 ( Foundations Act). A Manx foundation is a distinct legal person; yet, unlike a company, it has no shareholders. It holds assets in its own name with a view to furthering the foundation’s objects. Those objects may comprise the following: persons, purposes (charitable or non-charitable), a combination of both. These must be certain, reasonable and possible, and not unlawful, contrary to public policy or immoral. The foundation is administered under a constitution consisting of two principal documents, namely: the foundation instrument the rules of the...
This Practice Note has been created in collaboration with Shafaq Sadiq of Wedlake Bell. In Islam, the ethic of ‘giving and helping’ lies at the heart of faith, as such acts greatly please Allah Subhanahu Wa Ta'ala (swt—the most glorified, the most high). The Islamic institution known as the ‘ Waqf’ enables the dedication of wealth and is regarded as a very noble practice encouraged by Islamic law. for charitable or religious purposes; and as a means of family wealth management, offering financial stability to the donor’s family during their lifetime or after their death. Waqf The core idea of Waqf is sustainability, ensuring a continuing charitable endowment. The term derives from the Arabic ‘ Waqafa’, meaning to halt or hold; in essence, ownership ceases by transferring the property wholly to Allah swt. Waqf is a distinctive instrument within...
Inheritance is a core component of Shariah, the path to be followed. Its rulings are ordained by Allah subhanahu wa ta'ala ( SWT) — Allah, the most glorified, the most high. A person’s assets, whether during life or after death, must never be used in a manner that conflicts with what Allah SWT has decreed. In Islam, breaching these commands is regarded as a major sin. The Quran sets out the inheritance laws plainly and in depth. It is the primary source of Shariah, with the Sunnah as the secondary source. The Sunnah comprises the words and actions of the Prophet Muhammad, peace and blessings be upon him ( PBUH). While other acts of worship are mentioned in the Quran and elaborated in the Sunnah of the Prophet Muhammad ( PBUH), the inheritance rulings are explained by Allah SWT directly in the...
Two-thirds of a deceased person’s property is to be allocated in line with the Islamic rules of succession set out in the Quran. Primary heirs, also known as Quranic shareholders ( Ashabul- Furud), constitute the foremost class among the different categories of beneficiaries. Within this class, some heirs can never be entirely left out so long as no bar exists to stop them receiving their portion, while others may see their entitlement reduced because other shareholders are present... Primary heirs are: Father Paternal grandfather Husband Uterine brother Mother Wife Daughter Paternal granddaughter Maternal and paternal grandmother Full sisters Agnate sister Uterine sister There are three sets—parents, spouses, and children—who invariably inherit and cannot be barred whenever they exist in the estate. For instance, a sister of the deceased will not receive a share if the...
Importance of charity in Islam In Islam, charity is understood as an intimate offering shared between the giver, Allah subhanahu wa ta'ala ( SWT) — Allah, the Most Glorified, the Most High — and the person who benefits from the goodwill. It is not a means to seek applause from people; therefore, giving quietly is deemed the most excellent way to give, as discretion preserves sincerity. In certain circumstances, offering support publicly is preferred so that it may motivate others to follow the example and multiply goodness. Charity in Islam is far more weighty and purposeful than a straightforward cash donation. The idea of charity holds a deeper resonance and, consequently, is not confined to material worth; it may appear in many forms within daily conduct. A person’s conduct can itself be a charitable deed when it prompts him to do good from his...
The intestacy rules Where a person dies wholly or partly intestate—because no valid Will exists or some part is invalid or ineffective— Parts III and IV of the Administration of Estates Act 1925 ( AEA 1925) apply to: all the deceased’s movable property, wherever it is situated, provided the intestate was domiciled in England and Wales; and all the deceased’s immovable property in England or Wales, whatever their domicile Enquiries about a Will A thorough search should be carried out to determine whether the deceased left a Will. If none is found, enquiries should be made of the deceased’s next of kin and any known advisers instructed during their lifetime regarding estate planning, to establish whether a Will was made and has been lost. See Practice Note: Obtaining the Will. Reasons for total intestacy There is no statutory definition of intestacy. A total intestacy arises where none of the...
Intestacy—priority to apply for grant— Q& As For an overview of the intestacy regime, consult Practice Note: Intestacy—summary. Guidance on those entitled to inherit on an intestacy appears in Practice Note: Intestacy—beneficial entitlement. See also Flowchart: Entitlement on intestacy—flowchart and Practice Note: Intestacy—beneficial entitlement— Q& As. This Practice Note identifies who has precedence to seek a grant of letters of administration for an intestate person’s estate in particular situations, as addressed in our Q& As. Where a Will exists but no executor is willing or able to act, details of who may apply for a grant of letters of administration with Will annexed, and the order of priority, are set out in NCPR 1987, SI 1987/2024, r 20. See also Practice Notes: Administration with Will annexed—priority to apply for grant— Q& As and The type of grant...
Intestacy—beneficial entitlement— Q& As Practice Note: Intestacy—summary offers guidance on entitlement to inherit on an intestacy, together with the order of priority to apply for a grant of letters of administration. For further detail on who is beneficially entitled on an intestacy, see Practice Note: Intestacy—beneficial entitlement. See also Flowchart: Entitlement on intestacy—flowchart. This Practice Note examines a range of intestacy situations addressed in our Q& As. Intestacy where there is a surviving spouse or civil partner Practice Note: Intestacy—beneficial entitlement identifies the principal issues to consider where the deceased has died wholly intestate. Regarding the position of the surviving spouse, see section: Intestacy—beneficial entitlement— Spouse or civil partner. If the deceased left no issue, the spouse takes the whole estate. If the deceased left issue, the spouse takes any personal chattels, the statutory legacy (£322,000) and one-half of the residue outright. The remaining half of the...
In disputes concerning how documents are to be read, including a claim about construing a Will, the court’s task is to identify the sense a Will would communicate to a reasonable reader equipped with all background knowledge reasonably available to the testator when the Will was made, as explained by Lord Hoffman in the Investors’ Compensation Scheme Ltd case. For a summary of the courts’ overall approach to construction disputes, see Practice Note: Will interpretation—principles of construction. This Practice Note centres on the construction of nil rate band ( NRB) legacies in Wills and, in particular, the manner in which the courts will determine the value of assets passing to the legatee(s), which assets pass to the legatee, and how the residue of the estate is therefore constituted. The Practice Note also reviews precedent wording for NRB legacies and practical points that may arise...
Pension entitlements can be moved from one scheme to a different one. To prevent unfavourable tax outcomes under the Finance Act 2004 ( FA 2004), any movement from a UK-registered pension scheme must be a ‘recognised transfer’, which FA 2004, s 164(1)(c) explicitly treats as an authorised member payment. This Practice Note addresses the points to consider for: the sole recognised transfer permitted from a UK-registered pension scheme to an overseas arrangement (that is, a transfer to a Qualifying Recognised Overseas Pension Scheme ( QROPS))—for more detail, see: Transfer to a QROPS, below moves from a UK-registered pension scheme to overseas arrangements that are not a QROPS—for more detail, see: Transfer to an overseas pension scheme other than a QROPS, below transfers from overseas arrangements into a UK-registered pension scheme—for more detail, see: Transfers from overseas pension...
What is a fixed interest trust/interest in possession for trust law purposes? The entitlement a beneficiary holds in trust property can take the form of a fixed interest, conferring a right to income and/or capital, or it can hinge on the trustees’ exercise of a discretionary power (or that of another holder of a power) to confer benefits, after which the beneficiary acquires a fixed, limited or absolute, interest in the relevant property. It should be borne in mind that the concepts used in trust law and in tax law do not align; thus an interest in possession ( IIP) for trust law purposes will not automatically amount to a qualifying IIP ( QIIP) for inheritance tax ( IHT) treatment. If the trust is governed by a system of law other than that of England & Wales, the construction of its terms falls to that...
The effect of the anti-avoidance provisions contained within sections 10–13 of the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) Under the anti-avoidance measures in I( PFD) A 1975, ss 10–13, a person (including a trustee) who, during the deceased’s lifetime, received money, property or other assets can be required to pay sums or supply property to a claimant seeking reasonable financial provision under I( PFD) A 1975. These provisions operate against the donee and their estate, rather than against the particular money, assets or property transferred by the deceased. The remedy in I( PFD) A 1975, ss 10–13 is not a tracing remedy. When a claim for reasonable financial provision is issued, the claimant may couple it with an application effectively to claw back assets disposed of with the purpose of placing them outside the deceased’s net estate. This also...
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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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