Legal Practice Notes

This Practice Note This Practice Note sets out how a company secretary of a public or private company can be removed from office. It does not, however, address the manner of appointment or resignation of a company secretary in public or private companies; for those topics, see the Practice Notes: Appointment of a company secretary and Resignation of a company secretary. Neither the Companies Act 2006 ( CA 2006) nor the model articles include any provisions on the removal of a company secretary. The company’s articles of association......

Statute provides for two tax-efficient alternatives to a life assurance policy held within a registered occupational pension scheme: the relevant life policy ( RLP), and the excepted group life policy ( EGLP) In statute, an EGLP falls within the wider RLP concept; nevertheless, because it insures more than one life—rather than a single life—it is treated as a distinct insurance product line. For clarity in what follows, ‘ RLP’ is used for single-life policies and ‘ EGLP’ for multiple or group life policies. Originating in section 539A of the Income and Corporation Taxes Act 1988 in the run-up to ‘ A‑day’, and now set out in the Income Tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003) and in sections 480–482 of the Income Tax ( Trading and Other Income) Act 2005 ( ITTOIA 2005), EGLPs and RLPs provide lump sum...

This Practice Note examines what a purpose clause in a facility agreement is. It also outlines what Quistclose trusts are, the circumstances in which they arise, and why they are relevant to purpose clauses in facility agreements. Where appropriate, it signposts relevant provisions in: Precedent: Facility agreement (term loan): single company borrower—bilateral—with or without security or a guarantee the Loan Market Association ( LMA) investment grade multicurrency term facility agreement with/without observation shift (the LMA investment grade facility agreement) the LMA senior multicurrency term and revolving facilities agreement for leveraged acquisition finance transactions with/without observation shift ( LMA leveraged facility agreement) The other LMA standard form facility agreements, eg the LMA Senior Single Currency Term Facility Agreement for Real Estate Finance Multiproperty Investment Transactions, also include sample purpose clauses. LMA documents are available to LMA members on the LMA...

In Public Trustee v Cooper, the High Court of England accepted that it had power to approve a trustee’s momentous decision, thereby safeguarding that choice against later allegations of breach of trust and insulating it from subsequent challenge in the future. Background Before Public Trustee v Cooper, the court, exercising its long-standing supervisory role over trusts, already possessed jurisdiction to grant declaratory relief on the proper construction and meaning of trust instruments and to decide in advance whether a contemplated step lay within a trustee’s powers and authority. It could also, where appropriate, take over the trustees’ authority where they surrendered it because they were conflicted, or were stalemated in an insoluble dispute about the exercise of a power or discretion. The court's jurisdiction In Public Trustee v Cooper, a four-fold framework was articulated to identify the different types of proceedings, namely: category...

This Practice Note sets out a summary of the key considerations when a testator intends to benefit minors in their Will. It also signposts further resources relevant to making gifts to minors. Types of provision for minors As a starting point, a gift for a beneficiary who is under 18 must be held for them until they reach that age. Accordingly, where a testator wishes to provide for a minor, possible approaches include: a legacy that vests for the child via the minor’s parents or guardians on the testator’s death if the child is still under 18 leaving the relevant estate to the surviving spouse for life, on the basis that, if they do not survive the testator, the assets pass to surviving issue either immediately or at a specified age. See Precedents: Will—to spouse on flexible life interest trust, remainder to children absolutely and Will—to spouse...

Testators who intend to support a disabled relative or another individual must weigh several considerations, such as the person’s age, the nature and extent of their disability, their health outlook, their ongoing needs, and the funding likely to be required. It is also usual to assess how far the state may meet those needs. As a result, every matter must be reviewed on its own specific facts and circumstances. Perhaps the most challenging question is how much money should be provided when the exact level of future care, and the length of time it will be needed, cannot be known. To advise a testator properly, the practitioner must gather detailed information and consider a range of options, including potential combinations. Points to consider The factors relevant to advising a testator who wishes to make provision for a disabled person will vary from case to case, but...

Selling, buying and leasing property for P A deputy may undertake a broad range of property transactions on P’s behalf, according to P’s situation. This might involve selling a home that no longer meets P’s needs, purchasing a replacement property, or arranging rented accommodation for P, which is often used as an interim step while a longer-term housing solution is identified for P and their family. Standard 6 of the 2023 Deputy Standards Policy, issued by the Office of the Public Guardian ( OPG), concerns property management and makes clear that a deputy must deal with P’s property in accordance with the deputyship order and always in P’s best interests. Further detailed direction on managing property appears in the 2023 Deputy Standards: Guidance for Professional Deputies, also produced by the OPG. Standard 6 sets out best practice in relation to P’s property...

Practitioners can obtain a grant of probate or letters of administration, either as a personal representative ( PR) or on behalf of the PRs, in two ways: by post using application form PA1P or PA1A online via the HM Courts and Tribunals Service ( HMCTS) portal This Practice Note concentrates on the digital application route. For guidance on applying by post, see Practice Note: Preparing the application form PA1P/ PA1A for probate/administration. For wider guidance on grants of representation, see Practice Note: Application for a grant of representation... Registering to use HMCTS online The initial step for an online probate application is to register your organisation and approved users with HMCTS online services for legal professionals. My HMCTS is the portal used by legal professionals and other organisations to issue, pay for and manage applications across the civil and family courts and...

Renunciation Executors The authority of an executor can lapse either because of what they do or by direction of the court itself. The entitlement of someone named as executor in a testator’s Will ultimately comes to an end if they: die before obtaining a grant of probate do not appear when cited to accept probate, or formally renounce probate An individual: cannot be lawfully compelled to serve as executor, and may disclaim their right to a grant provided they have not, by intermeddling with the estate, impliedly accepted the office It makes no difference that, during the testator’s lifetime, the person had agreed to take on the role of executor. Instead of renouncing, an executor may opt to have power reserved to them, preserving the ability to apply for a grant at a later time. The rights of a person appointed by a Will also end if: a grant of probate is...

A trust is a legal arrangement created either during life by gift or on death, where an individual (the settlor) passes assets to one or more people (the trustees) to hold for beneficiaries or for a defined purpose. Depending on the terms of the trust deed, the trustees may simply retain the assets until a future event occurs, or they may invest them so that the beneficiaries can receive value from the fund, typically as distributions of capital or as income generated by the investments. Benefits may arise on the happening of a condition or over time, according to the instrument. A trust therefore involves three roles: settlor, trustees and beneficiaries. It rests on equitable principles under which legal title to property is distinct from beneficial ownership, and the trustee owes a duty of care to the...

When moving into a care home, the relationship between the incoming resident and the home’s administrators should be defined by a contract between them. This is particularly crucial where the resident is self‑funded. If they are not self‑funded and rely on local authority‑funded accommodation, they will not be a contracting party, though they remain entitled to view a statement of the terms and conditions. There are two elements the practitioner should assess: whether the contract addresses all relevant matters whether any term might be considered unfair The contract After years of concern about the quality of care homes, the Care Standards Act 2000 ( CSA 2000) modernised the regulatory framework for care services and independent health care. Notably, National Minimum Standards, applicable to all care homes providing accommodation and nursing or personal care, were introduced under the CSA 2000 by the...

A lifetime gift A lifetime gift is a gratuitous shift of ownership in any property between living people, made without an expectation of death. By contrast, a gift made in contemplation of death may amount to a deathbed gift, or donatio mortis causa. See Practice Note: Devolution of assets and the need for a grant— Deathbed gifts. For a lifetime gift to be effective, it is not necessary for legal title to pass to the recipient. The donor can make a perfect gift of the beneficial interest while retaining the legal estate (constituting a trust). The hallmark of a gift, as opposed to another form of transfer, is the absence of consideration. A lifetime gift can be made by: deed or another instrument in writing delivery, where the subject-matter is capable of delivery declaration of trust, which is the equitable counterpart of a gift No gift arises if the donor lacks...

What is a Larke v Nugus request In 1959, the Law Society first advised that, when a dispute arises over a Will’s validity, the solicitor who drafted it ought to promptly provide appropriately a statement in writing setting out, clearly, their evidence and understanding about the instructions, the drafting, and the execution of the Will. The Court of Appeal carefully reviewed this guidance in Larke v Nugus SJ 123 (1979) 337 (not reported by Lexis+®). In that case, the court then indicated that where there is a genuine contest about a will’s validity, going beyond the simple entry of a caveat, and the solicitor’s knowledge renders them a material witness, the solicitor should supply a statement of their evidence concerning the will’s execution and the surrounding circumstances to any party involved in proving or disputing the will, irrespective of whether the solicitor acted for those...

Forced heirship Forced heirship describes a situation where the children or other close kin of someone who has died are entitled, as a matter of right, to part of that person’s patrimony (broadly, the estate after reinstating any gifts made during lifetime), regardless of the testator’s intentions. In England and most common law systems, constraints on testamentary freedom are minimal, whereas civil law systems (rooted in Roman law) oblige testators to provide for their nearest family. In certain countries (eg France), forced heirship applies mandatorily so that a portion of the estate is automatically earmarked for the relevant forced heirs, while in others (eg Germany, Italy and Switzerland) those heirs instead hold a claim against the will’s beneficiaries. The succession law that governs a death will be identified differently from one jurisdiction to another, depending on the connecting factor recognised and applied in that forum. The...

What happens when a debtor dies? Someone may pass away while insolvent. An estate is insolvent when its value does not suffice to discharge all debts and liabilities in full. In such cases, the estate’s administration is regulated by the Administration of Insolvent Estates of Deceased Persons Order 1986 ( DPO 1986), SI 1986/1999. It applies to estates of the insolvent deceased, including where death follows the presentation of a bankruptcy petition or the making of a bankruptcy application. Its main effect is to adapt the Insolvency Act 1986 ( IA 1986). The interaction between DPO 1986, SI 1986/1999 and IA 1986 is examined in Re Estate of Platon Elenin (aka Boris Abramovich Berezovsky). What should happen to the insolvent estate? Unless a bankruptcy order exists (or a bankruptcy petition has been presented or an application made), an insolvent estate must be managed in one of three...

Administration with Will annexed—priority to apply for grant— Q& As For guidance on the different forms of grant of representation that personal representatives ( PRs) might be required to obtain, refer to Practice Note: The type of grant needed. In most estates where the deceased left a valid Will, there is at least one executor named who survives and is ready and able to act. One or more of those appointed will then proceed to apply for a grant of probate in the ordinary manner. This remains the standard route in straightforward circumstances. Occasionally, the executors first listed are unwilling or unable to serve, yet the Will identifies one or more substitute executors who are prepared to do so. See Practice Note: Application for a grant of representation. Their appointment enables continuity in progressing the estate as intended. That said, it is not uncommon for every...

Introduction Where a property transaction in England and Wales involves an overseas company, a legal opinion should be obtained. Common examples include: the sale or purchase of land the grant of a lease the provision of a guarantee the taking or granting of any security For this Practice Note, an ‘overseas company’ is any entity incorporated outside the United Kingdom (that is, outside England, Wales, Scotland and Northern Ireland). Companies formed in the Channel Islands and the Isle of Man are treated as overseas companies. This aligns with the Companies Act 2006 and the Land Registration Rules 2003, SI 2003/1417. Note that advice from solicitors qualified in Scotland or Northern Ireland may be needed where the property is located in Scotland or Northern Ireland, or where the contracting party is a distinct legal entity not governed by the Companies Act 2006. Also, a legal opinion will be necessary where a...

In certain welfare matters before the Court of Protection, a fact-finding hearing is needed to settle disputed points of fact arising in the case and to enable the proceedings to move forward fairly. When is a fact-finding hearing required? Most welfare applications in the Court of Protection ordinarily generally indeed conclude without any separate, formal fact-finding exercise. Typically, although parties may differ over the future plan said to ultimately serve the vulnerable person ( P)’s best interests, they nonetheless usually accept the key, material background facts the court must take into account. Only in a small fraction of cases exceptionally does the court actually exercise case management powers to order a fact-finding hearing to decide contested facts. The court, in practice, most often commonly directs such hearings (either standalone or folded into the final hearing) in so-called ‘safeguarding cases’ brought by local...

Guide to executing simple contracts across jurisdictions This guide explains the requirements for signing simple contracts in a range of international jurisdictions. A table gives a quick-reference snapshot of the execution formalities for companies, individuals and partnerships in different countries. Fuller commentary for each overseas jurisdiction listed in the table appears in the sections below. For guidance on the execution of deeds in various jurisdictions, see Practice Note: Execution of deeds—jurisdictional guide. For electronic signatures, see Practice Note: E-signatures—jurisdictional guide. For the formation of contracts, see Practice Note: Contract formation—jurisdictional guide. For executing documents under Scots law, see: Execution— Scotland—overview. Please note: this is an introductory resource only, and local advice from suitably qualified legal professionals in the relevant country should be obtained where appropriate. Summary table What are the requirements for companies when executing contracts? What are the requirements for...

This Practice Note provides practical guidance on the proper execution of documents by non- Companies Act corporations This Practice Note offers practical direction on executing documents correctly for corporations outside the Companies Act. Such corporations arise under statute, like local authorities and building societies. A corporation has a legal identity distinct from its members, enabling it to enter contracts, own property, and bring or face proceedings in its own name. Here, the focus is on corporations aggregate (groups of persons) rather than corporations sole (a single office-holder). The expressions ‘body corporate’ and ‘corporation’ are broad and include entities constituted by: Statute: including building societies, co-operative or community benefit societies (formerly industrial and provident societies), and friendly societies A general Act of Parliament: such as local government authorities, corporations overseeing public services and industries, bodies with general administrative and advisory roles, and certain entities carrying out special...