Legal Practice Notes

Modes of revival A testator who has revoked their Will, whether or not a new one was created, may later wish to restore the revoked Will. They may write out the revoked Will afresh and execute it in accordance with section 9 of the Wills Act 1837 ( WA 1837), or rely on the provisions of WA 1837, s 2. Under WA 1837, s 22, revival of a revoked Will or codicil (or any part of them) is limited to: re-execution a duly executed codicil indicating an intention to revive the earlier document Case law confirms that no other means of revival exists. The intention to revive must be apparent. Where a Will is re-executed, the very act of re-execution evidences the testator’s intention to bring it back into effect. In the case of a codicil, the statutory requirement that there be an...

Checking whether a Will is valid After obtaining the Will, examine it and any codicil to verify they meet the legal requirements for a valid Will. Confirm that it: was executed in line with the required formalities has not been revoked by operation of law on marriage or civil partnership has not been revoked by a deliberate act of the testator, by a later Will or codicil, or by destruction has not been altered was made when the testator was over 18, or if under 18, that they were a soldier on active military service, or a mariner or seaman at sea is free from staple or paperclip marks has no pages missing is the most recent Will A valid Will The fundamental criteria for a valid Will are that the testator must: have the mental...

For probate purposes, the UK is divided into three jurisdictions: England and Wales Scotland Northern Ireland If someone dies domiciled in one of these areas but holds assets in another, a single grant is sufficient. The grant is obtained in the jurisdiction where the deceased was domiciled and, if it records that domicile, it will be recognised throughout the rest of the UK. Where a grant or confirmation predates the commencement of the Administration of Estates Act 1971 ( AEA 1971) on 1 January 1972, it may not include a domicile statement. For English and Welsh grants, an application to append a note of domicile should be made to the district probate registry that issued the grant. Scottish confirmations A Scottish confirmation: includes a copy of the inventory of the deceased’s estate as sworn by the...

This Practice Note outlines the meaning of a profit à prendre and the various categories, the ways such rights may come into being and be brought to an end, and highlights those most frequently met in practice. It also briefly addresses profits à prendre during due diligence and the means of securing them by registration at HM Land Registry. Introduction—what is a profit à prendre? A profit à prendre is a legal right to remove natural produce from land owned by someone else. Illustrations of profits include: elements of the land itself, such as sand, peat or minerals products growing on the land, such as grass or timber—this includes grazing rights wild creatures such as fish or game In day-to-day practice, shooting and fishing rights (often called sporting rights) are the profits most often encountered. The items taken must be capable of...

Child of the deceased Definition A child of the deceased is an eligible applicant under section 1(1)(c) of the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) for these purposes. For the avoidance of doubt, I( PFD) A 1975, s 25(1) states that a child includes an illegitimate child and a child en ventre sa mere (ie in the womb) at the date of the deceased’s death. The meaning of child extends to an adult and/or married child as well. A child of the deceased? Questions can arise as to whether the individual is the deceased’s child in particular circumstances in law too. Under the Human Fertilisation and Embryology Act 2008, ( HFEA 2008), the general rule is that where a woman carries a child as a result of placing an embryo in her, or sperm and eggs, or...

There are several grounds on which a gift may fail, one of which is lapse. For more detailed guidance on the different causes of failure of a testamentary gift, see Practice Note: Failure of gifts—effects. This Practice Note explores the doctrine of lapse in greater depth. Nature of lapse For a person to take under a Will, the beneficiary must outlive the testator. A legacy is treated as lapsed and falls into residue: if the beneficiary dies before the testator if the beneficiary dies before fulfilment of a condition precedent to the vesting of the legacy Testamentary gifts can also be regarded as lapsed for alternative reasons, eg where a beneficiary witnesses the Will, or where the beneficiary disclaims the gift. A testator cannot disapply the doctrine of lapse merely by adding a provision to the Will stating that the gift shall not lapse. However, a testator can ensure that a...

This Practice Note outlines the formal requirements for witnesses, covering who may witness another person’s signature on a document connected to a commercial deal, such as a deed or simple contract, as well as witnessing electronic signatures and the current approach to video witnessing in practice. For guidance on witnessing wills, see Practice Note: Validity of Wills—signature. We have created a collection that serves as a comprehensive, interactive resource to help users recognise and navigate the concepts and frequent issues and pitfalls in executing documents, including the witnessing of signatures. Each stage or phase provides practical guidance, precedent clauses and Q& As relevant to that stage. For further details, see: Execution collection. Witnessing What is the difference between witnessing and attestation? Witnessing is the act of observing the execution of a document. Attestation adds the further step of noting, on the document itself, that the witness has seen the...

Practitioners should be mindful of several factors when dealing with an estate where the deceased was domiciled overseas and/or held assets abroad, particularly the effect of foreign domicile on the succession of the estate. For more detail, see: Cross-border estates—overview. This Practice Note sets out the process for seeking a grant of representation in England and Wales where the deceased was domiciled abroad. While domicile has long mattered for UK inheritance tax ( IHT), the shift to a residence-based IHT regime and the approach to excluded property from 6 April 2025 do not change the ongoing significance of an individual’s domicile for succession to the estate and for entitlement to a grant of probate. See: Domicile of individuals—overview. Deceased domiciled outside England and Wales Where the deceased died domiciled outside this jurisdiction but owned assets here, a grant in England and Wales will be needed to...

Overview of potential IHT charges When setting up or running an employee benefit trust ( EBT), it is essential to assess the likelihood of Inheritance Tax ( IHT) liabilities. Consider the following: Does the EBT satisfy section 86 of the Inheritance Tax Act 1984 ( IHTA 1984), making it a section 86 trust? Does the EBT include any sub-trusts and, if so, does it still fall within section 86? Is the company providing funds to the EBT a close company? In what manner will beneficiaries receive value from the EBT? Inheritance tax issues for the trustees of an EBT As a broad principle, assets held in a discretionary arrangement such as an EBT come within the IHT framework. Where a charge to IHT arises, the trustees of the settlement are responsible for payment. That said, employee trusts which satisfy the detailed...

FORTHCOMING CHANGE : On Tax Administration and Maintenance Day, 27 April 2023, the previous Conservative government issued a summary of responses to its 2021 call for evidence, ‘ Modernising debt collection for non-paying businesses’. That summary indicates an initial consultation will concentrate on four of the six original proposals, including a plan to broaden direct recovery of tax debts ( DRD) to cover digital wallets. Before consulting on these measures, HMRC will build an evidence base on the extent of serial non-payment and evaluate existing legal obstacles to widening these powers. The summary also notes the government will determine the most appropriate time to consult. For further details, see News Analysis: Tax Administration and Maintenance Day—27 April 2023. DRD refers to HMRC’s ability to direct banks and building societies (ie deposit-takers) to remove funds to settle taxpayers’ liabilities straight from their bank...

Under the Companies Act 2006 ( CA 2006), company directors owe their company a set of general duties, which include the obligation to further the company’s overall success. For an introduction to the general duties, please see the Practice Note: Directors' duties—fundamentals......

Directors are the agents of a company who manage its day-to-day business and owe a number of duties to it The Companies Act 2006 ( CA 2006) for the first time put into statute a range of common law and equitable duties that had evolved through court decisions over hundreds of years, and it also altered company law in specific respects. Sections 171 to 177 CA 2006 set out the statutory general duties owed by a director to their company: act in line with the company’s constitution and exercise powers only for the purposes for which they were given act, in good faith, in the way the director believes would most likely promote the company’s success for the benefit of its members as a whole, while having regard to various matters (the duty to promote the success of the...

The nature of a life interest trust In essence, a life interest trust gives the life tenant a right to the income generated by the trust fund, or to occupy or enjoy trust property. However, the life tenant has no claim to the capital, which is preserved for the remaindermen once the life interest ends. Put plainly, A receives income for life, and on A’s death the capital passes to B. Beneficiaries can be identified expressly in the clause, or described by reference to defined terms, as appropriate in context......

Constituents of a trust When preparing instruments, bear in mind that to constitute a valid trust the core requirements are: there must be identifiable property or rights capable of being subjected to a trust the trust must satisfy the requirements for formal validity the trust terms must be sufficiently certain to make the trust administratively workable (i.e. essential validity) the purpose of the trust must be lawful A trust is void if it is created for an illegal purpose or is otherwise contrary to public policy. Property capable of being subjected to a trust Any species of property may be made the subject of a trust, provided there is no reason in law why the owner is prevented from parting with the beneficial interest, whether: under the general law, due to the specific circumstances of the...

A company limited by guarantee is a corporate form where members promise to contribute to the company’s assets if it is wound up. This Practice Note outlines the principal characteristics of a guarantee company and explains why such a vehicle might be chosen to run a business rather than a company limited by shares... What is a company limited by guarantee? Limited companies fall into two categories: limited by shares or limited by guarantee. In a guarantee company, the members agree to pay a specified amount towards the company’s assets should it be wound up. A company limited by guarantee cannot be a public company... Most companies limited by guarantee have no shares, because since 22 December 1980 (1 July 1983 in Northern Ireland) it has not been possible to form a guarantee company with a share capital. Those with a share capital can be public or...

Principal private residence relief ( PPR relief) removes some or all of the gain arising on the sale or disposal of an individual’s dwelling-house from capital gains tax ( CGT) where the property was their sole or principal residence at any time during their ownership period. UK-resident taxpayers may claim PPR relief on the disposal of a UK or a non- UK residence. Individuals who are not UK resident may claim PPR relief on the disposal of a UK dwelling-house. From 6 April 2015, a residence will not qualify for PPR relief in a tax year unless the individual either: was resident, in that tax year, in the country where the dwelling-house is situated; or spent at least 90 nights in the dwelling-house (or in dwelling-houses within the same country) during that tax year. Principal private residence relief: the basics In general, gains realised on the...

What is principal private residence relief? Principal private residence ( PPR) relief is a relief from capital gains tax ( CGT). It may apply to the gain arising on the disposal of a dwelling house, or land occupied and enjoyed with it, where the property is, or has at any time during ownership been, the owner’s only or main residence. The residence can be in the UK or overseas, subject to specific conditions linked to the taxpayer’s residence status. If the property has not been the only or main residence for the full period of ownership (subject to certain permitted absences), or if the owner has not been resident in the same territory as the property for part of that time, the relief will only reduce a corresponding part of the gain. The relief applies to disposals by individuals, trustees and personal...

STOP PRESS: The Property ( Digital Assets etc) Act 2025 obtained Royal Assent on 2 December 2025 and took effect that same day. Section 1 confirms that a thing (including one of a digital or electronic nature) is not barred from being the subject of personal property rights simply because it is neither a thing in possession nor a thing in action. As a result, digital holdings such as cryptocurrency, non-fungible tokens and carbon credits can now be recognised as personal property. See LNB: 04/12/2025 2. What does a testator need to consider? The crucial issue is that executors must be able to pinpoint the assets; if these sit within online bank accounts, shares, game characters or crypto tokens locked behind passwords and private keys, there is a significant risk that estates are under-reported for Inheritance tax and that assets do not reach the intended...

All Muslims ought to arrange the division of their estate in line with Islamic inheritance rules. Addressing every Muslim denomination would be an immense undertaking, as inheritance principles can vary significantly between them. Accordingly, only general guidance can be given. Shia principles Typically, members of this school are expected to follow the guidance of an A'alam Mujtahid, a distinguished jurist. Yet one such eminent authority may interpret the inheritance rules quite differently from another of equal rank. In light of this, achieving a uniform approach is difficult; for present purposes, guidance on Shia principles will draw upon the rulings of His Eminence the Grand- Ayatollah As- Sayid Ali- Husseini As- Sistani. There are several important matters to consider when drafting a Will and when addressing succession. Burial The treatment of the body is of paramount importance, and burial must be conducted in full accordance with the rites of the...

The EBT as a trust An employee benefit trust ( EBT) is a type of trust. A trust is the legal arrangement created by a settlor when assets are placed under the control of a trustee for the benefit of a beneficiary, or to achieve a specified purpose. A trust (including an EBT) typically has these characteristics: the assets form a separate fund and do not belong to the trustee’s own estate legal title to the trust property is held in the name of the trustee the trustee has the power and duty, for which it is accountable, to manage, apply, or dispose of the assets in line with the trust terms and the special obligations imposed by law As a general rule, a trust (including an EBT) must have certainty of objects, and for non-charitable trusts such as an EBT, there must be someone in whose favour the court can...