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Death Certificates

The Coroners and Justice Bill overhauls the law on the coroners' service, creating a post of chief coroner for England and Wales to be held by a High Court judge, new national standards for coroners' investigations and powers to transfer investigations into deaths from one area to another to prevent the backlogs that occurred in the hearing of military inquests arising from deaths in Iraq. It also brings in a new death certification system in the aftermath of the Shipman murders.   Currently there is no statutory requirement or provision for confirmation or certification of the cause of death although a doctor is usually summoned to confirm that death has occurred. A doctor who has attended the deceased during their last illness can issue a Medical Certificate of Cause of Death (MCCD) which is a standard form used throughout England and Wales. The completed MCCD is handed to a relative or other appropriate person ("the informant") and that person attends the local registry office to register the death.....

Inheritance Tax Exemptions

Inheritance Tax is a c o n s i d e r a b l e concern to most clients particularly when they begin the process of writing a will and considering to whom their estate will be left. In previous times of spiralling property prices, the number of individuals whose assets exceed the Nil-Rate Band has continued to increase. As a result, more and more people are looking for ways to minimise their Inheritance Tax liabilities.   Competent IHT planning is essential to ensure the beneficiaries of your client's will are not going to be burdened with an unaffordable tax bill. There are numerous techniques that can be used in order to achieve this, but one of the key elements of any successful Inheritance Tax strategy is the efficient use of exempt and potentially exempt transfers. Potentially exempt transfers can be.....

Will Clauses

New case law has led to the Privy Council providing more guidance on the interpretation of Wills in general and the expression 'per stirpes'. The debate in this case related to Clause 6 in the Will of the deceased who died in the Bahamas in 2004. He left a multi million pound estate, a portion of which was left under the following clause: 25% to a) my cousins (of which there were 4) and b) my ex-spouse in equal shares and if any of them predecease (the ex spouse or cousins) then to their issue per stirpes.   The issue of construction related to whether, under this clause, each took 5% or whether it was divided into two equal portions, one shared by the cousins and one for the ex-wife. The judge found in favour of the wife and the cousins appealed. On appeal Lord Philips stated that the starting point when construing any will was to attempt to deduce the intention of the testator by giving the wording

Illegitimate Children

With 45% of children being born outside of marriage illegitimacy raises not only questions of principle but also technical points on drafting. Although it is a matter for the testator to decide whether any illegitimate children should be included as beneficiaries under a Will if a drafter is asked for any advice the preference should be to include them according to James Kessler QC. Not only is this reflective of the 'modern world' but has a practical advantage. Parents are under a legal obligation to maintain their children, whether they are legitimate or not. Protection is available to trustees however where the existence of an illegitimate child is unknown at the time of distribution. This was previously given by statute in s.17 Family


Contesting a Will

In August 2006, Mark Birley, the founder of an aristocratic night spot in London, passed away leaving an amassed fortune of £105 million. The extraordinary dispute over the multi million pound legacy that has split one of Britain's leading society families, has been privately settled. Shortly before his death, Mark Birley tore up his original Will after an argument sparked by the discovery that his son had used £200,000 of the night club's profits. He had used the money to hire a private detective after he suspected his sister's new partner was a gold digger. Mark Birley rewrote his Will following this dispute with his son, Robin Birley, and a further disagreement over the management of the renowned nightclub 'Annabel's'. The amended Will left the majority of his fortune


Reservation with Benefit

As part of IHT financial planning many clients may be in a position in which they would benefit from gifting property to children during their lifetime to avoid it forming part of their estate on death and incurring an inheritance tax liability. The gift is 'potentially exempt' from IHT which means that there is no IHT payable at the time the gift is made and, as long as the donor survives for seven years, the gift will not 'fall back' into the estate on death. If the donor continues to use the property the taxman views this as 'reserving a benefit'.


Probate Disputes

This case is a long delayed probate retrial concerning which of three Wills should be admitted to probate in respect of the estate of Alice Adam. In 1978 Mrs. Adam executed the first of the Wills under which she appointed Mr Couwenbergh her executor and, after a £500 legacy to her brother Eugen, left the remainder of her estate in equal shares to Eugen's two sons, his daughter Barbara (i.e. to her two nephews and niece) and to Mr Couwenbergh. There was no issue concerning the validity of that Will, the original of which had gone missing. The question raised during the case was whether the 1978 Will was revoked by


Presumption of Revocation

A recent case saw a widow and daughter seeking a declaration that the deceased had died intestate, making them the sole beneficiaries of the estate. In Kwawangen & Ciebrant v RNLI & Others [2008] the defendant charities stated that the deceased had left a Will leaving his entire estate to them and made a counterclaim for a grant of letters of administration with reconstituted Will annexed.   The deceased had not lived with his wife and daughter (the claimants) since the 1960's and, though they still corresponded, had not seen them since 1976. The deceased owned a property which he had purchased in 1974 with a friend, inheriting his friend's share on her death........

Mutual Wills

More recent case law on this contentious issue has highlighted the problems which can be caused by a couple executing mutual Wills. Mutual Wills should not be confused with Mirror Wills. Mutual Wills are any two (or more) Wills which are mutually binding, such that following the first death the survivor is constrained in his or her ability to dispose of his or her property by the agreement he or she made with the deceased. Historically such Wills had an important role in ensuring property passed to children of a marriage rather than a widow or widower's spouse on a remarriage.   The doctrine of mutual Wills provides that where two people agree to make corresponding Wills and one of them has died without revoking his Will, the other has equitable obligations imposed on the property taken by the survivor under the Will. The doctrine dates back to the 18th Century and has caused much contention within families whose Wills have invoked it. This case was even more contentious in that the survivor gave evidence denying the agreement and disputed the application of the doctrine.   Mr Harold Walters and his late wife Freda made a mutual Wills contract pursuant to which they executed codicils amending their Wills. Following Freda's death in 2006 Harold inherited her estate and disputed the application of the mutual Wills doctrine. The judge in this case considered the principles established under Birmingham v Renfrew [1937]: "It has long been established that a contract between persons......

Capital Gains Tax and the Family Home

The principle tax saving opportunity available to a home owner is the Capital Gains Tax (CGT) private residence exemption. A saving on income tax is no longer possible since the withdrawal of mortgage interest relief from 2000/2001 o n w a r d s .   As a substantial asset your clients may frequently raise questions about gifts of the family home, or at least an interest in it, as part of estate planning and IHT savings on its value at death. The CGT exemption applies to a disposal by sale or gift of a property used as the donor's own or main residence, including grounds up to half a hectare. Only certain types of property are considered to be a 'dwelling house' in accordance with these provisions and debate has even occurred in case law about a caravan being considered to be a dwelling.   Those clients who own more than one property can elect for one to be treated as the main residence. This election needs to be made within two years of acquiring a second property; if an election is not made by the owner it will be made for them by the inspector of taxes. A married couple, or a couple in a civil partnership, can only have one main residence between them and if both parties own a property then an election must be made within two years of the marriage. Where the family home is used in estate planning the saving of IHT must be balanced with the necessity to keep a roof over the donor's head. The most common procedure for IHT saving is to gift the property, or an interest in it, to another individual, normally a child. The property can be given to trustees and a right.....

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