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Gifting by attorneys

Analysing approaches in an important area of practice

The gifting of P’s property during their lifetime forms a substantial part of the work of professionals operating within the property and affairs jurisdiction of the Court of Protection and indeed the work of the court. Applications that come to court tend to be important both to the potential recipient but also to those representing P. While the gift of P’s property on death by way of a statutory will is one thing, the gift of their property during lifetime is likely to be subject to greater scrutiny by those acting on their behalf and by the court for the simple reason that P might need the money before they die. The future is inherently hard to predict and many Ps have substantial, unpredictable and expensive needs.

Wills and Estates, Construction and Validity

Oliver v Oliver [2024] EWHC 2289 (Ch)

This was a probate claim, with an alternative claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) in the event the later will was valid. This article considers a procedural point that arose, namely whether there should be a trial on the written evidence, as well as the substantive will validity challenges on the grounds of lack of formalities, testamentary capacity and undue influence. As the court held the later will invalid, there was no need to determine the alternative claim under the 1975 Act.

Wills and Estates, From the Courts
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IHT – When does the seven-year period start?

One of the most basic Inheritance Tax mitigation strategies is to make a Potentially Exempt Transfer  and to survive for seven years. It is generally well understood that if there is a reservation of benefit, the seven-year survival period will not start running until the reservation of benefit is removed.

Taxation, IHT

CGT Investors’ Relief

Briefing, CGT

Challenging the validity of a will

Wills and Estates, Family Issues
Briefing

A knotty problem of ordering ADR

In Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, the Court of Appeal appeared – controversially – to take the view that a court could not lawfully compel parties to a civil dispute to participate in an alternative dispute resolution process.

Briefing, From the Courts, Legal Practice

Untamed judicial discretion

The Trusts of Land and Appointment of Trustees Act 1996 introduced pivotal substantive reforms to English land law, in particular ridding it of the outmoded concept of the trust for sale and replacing it with the trust of land.

Briefing, Wills and Estates, Real Estate, Taxation and Valuation, Legal Practice
Wills and Estates

Forfeiture and Assisted Voluntary Dying

This article examines whether those who travel with a loved one to a Swiss-assisted dying clinic are precluded by the rule of public policy known as the forfeiture rule (“the Forfeiture Rule”) from benefitting from the death.

Wills and Estates, Family Issues

When detriment need not be detrimental

Although the equitable doctrine of proprietary estoppel has origins in decisions of the Court of Chancery in the 19th century, it did not begin to form a significant part of the armoury of the court’s equitable jurisdiction until it was “re-discovered” and considerably expanded in the late 20th and early part of this century.

Wills and Estates, Family Issues
Trusts

In arbitration, we trust

On 28 December 2023, the Supreme Court of The Bahamas handed down a consolidated judgment in the seemingly interminable and increasingly renowned case of Gabriele Volpi v Delanson Services Ltd & 2 Others and Delanson Services Ltd v Matteo Volpi and 2 Others.

Wills and Estates, Trusts, Trustee Powers, Duties and Management, From the Courts, Legal Practice

Haque v Hussain

In Haque v Hussain [2024] EWCA Civ 806, various properties in London were held on trust for an organisation called Muttahida Quami Movement.

Trusts, From the Courts
Taxation

Rome, primroses and etymological chameleons

Turner’s “Rome, From Mount Aventine” (the “Painting”) was completed in 1835, the preliminary sketches having been made during his second trip to Rome in 1828. We are on the southernmost of the seven hills, looking north over Tiber Island at dawn.

Taxation, CGT

The taxation of foreign domiciliaries from April 2025

It will be well known by most readers that it has been a key plank of Labour’s electoral campaign to abolish the link between domicile and UK taxation.

Taxation, IHT, CGT, Government Policy and the Budget, Legislative Changes, Wills and Estates, Real Estate
From the Courts

Deathbed gifts of registered land (donatio mortis causa)

As private client practitioners we are familiar with people attempting to redirect their property towards the end of their lives. Although contemplating impending death seems to focus the mind, claims founded on deathbed gifts remain rare.

IHT, Wills and Estates, Construction and Validity, From the Courts

“Disposing” of an equitable interest and section 53(1)(c)

LA Micro Group (UK) Ltd and Another v LA Micro Group Inc and Others [2023] EWCA Civ 214 is a recent case considering the operation of the formality requirements under section 53(1)(c) of the Law of Property Act 1925.

Trusts, From the Courts
Real Estate

Equitable fraud?

Claims to a beneficial interest in property which is held in the sole name of the defendant are often brought on the basis of a common intention constructive trust.

Wills and Estates, Construction and Validity, Formalities and Amendment, Real Estate, Trusts, Trustee Powers, Duties and Management

Foreign lasting powers

It is increasingly common for people to live lives that are more and more international, not only with assets of significance across multiple jurisdictions but also their residence(s) split similarly.

Real Estate, Trusts