A round-up of legal updates for the Wills and probate industry over the past two months are as follows.
Tax Policy – Finance Act 2023
On 10 January 2023, the Finance (No 2) Bill 2022 received Royal Assent and became the Finance Act 2023. The private client measures in the Act that affect individuals include:
- Clause 5 – the income tax basic rate limit and the freeze on the personal allowance (£12,570) for tax years 2026-27 and 2027-28;
- Clause 6 – the reduction in the threshold at which the income tax additional rate (45%) is charged from £150,000 to £125,140;
- Clause 7 – the reduction in the dividend nil-rate from £2,000 to £1,000 from April 2023, and then to £500 from April 2024;
- Clause 8 – the reduction in the capital gains tax annual exempt amount from £12,300 to £6,000 from April 2023, and then to £3,000 from April 2024; and
- Clause 9: the inheritance tax (“IHT“) nil-rate band and residence nil-rate band are frozen at their current levels (£325,000 and £175,000 respectively) until 2027/28.
Trusts – new TRS penalties
HMRC have issued new guidance on the penalty regime for failing to register a trust on the Trust Register, or keeping the entry up to date. Up until now, HMRC had adopted a lighter approach to penalties with there being no penalty for a first offence. Under the new regime, HMRC will charge a penalty if they decide that the failure is deliberate. This will be decided on a case-by-case basis and will involve a fixed penalty of up to £5,000 for non-compliance. There will be no interest charged on penalties. There is a review and appeals process for any disputes. HMRC issues new guidance on penalties for TRS non-registration | STEP
Mental capacity – amended application process for deputyships
From 1 January 2023, the process for applying for a property and affairs deputyship (“PA deputyship“) has changed and notifications to interested parties must be made upfront, before the application is submitted, not afterwards. In addition, the application itself can be made online, whereas previously it could only be made on paper. To facilitate these changes, there is a new Practice Direction and new Court of Protection forms COP14PADep and COP15PADep (which replace the former COP14 and COP15). All new PA deputyship applications from 1 January 2023 must follow this new process; from 1 February 2023, applications that do not will be returned to the applicant. Changes to P&A deputyship applications from 1 January 2023 – Court of Protection Handbook
Estate administration – review of law on disposal of deceased’s body
On 22 December 2022, the Law Commission announced that it is reviewing the laws concerning the disposal of a deceased person’s body. The applicable rules and regulations are outdated and complex, and largely date back to the 19th century. In particular, under current law, there are no guarantees that a person’s wishes for what happens to their body after death are respected and this legal uncertainty can lead to disputes between family members. The project will start with a scoping phase to enable the Law Commission to agree the terms of reference with the government. Outdated laws on disposal of the deceased to be reviewed, including burials, cremation and other methods – Law Commission
Contentious estates – executor’s standing to sue
In Jennison v Jennison and another [2022] EWCA Civ 1682, the Court of Appeal ruled that an executor appointed in a foreign Will has standing to bring a claim irrespective of whether a grant of probate has issued in England and Wales or a foreign grant had been resealed. The ruling meant that the widow and executrix of an Australian resident deceased had standing to sue the deceased’s brother in England for alleged breaches of trust in connection with the deceased’s estate in England. Court of Appeal considers approach to determine standing to sue where executor appointed under foreign will | Practical Law (thomsonreuters.com)
Mental capacity – OPG notification of death procedures
The Office of the Public Guardian (“OPG“) are making changes to their procedures for notifying the death of a donor of a Lasting Power of Attorney (“LPA“), an attorney under an LPA, a deputy, guardian or missing person. The changes are designed to simplify the process and will mean that in most cases there will be no need to send in a proof of death as the OPG can verify the death via an online system. Previously, the OPG requested proof of death for every death notification.Notification of death: Public Guardian practice note – GOV.UK (www.gov.uk)
Estate administration – interest in possession under a Will treated as cancelled
In Hall v HMRC [2023] UKFTT 32 (TC), the First-tier Tribunal (“FTT“) found that there was no interest in possession (“IIP“) in a property left under a Will if the executors’ only option was to sell the property in order to pay the estate’s IHT bill. In practice, the residuary beneficiaries of the estate had paid the IHT themselves to avoid the property being sold. The dispute arose on the death of the life tenant of the property with HMRC seeking to charge IHT of £190,000 on the life tenant’s IIP. The FTT found that the deceased life tenant could not enforce a right under the Will to live in the property and therefore did not have an IIP on which IHT could be levied. No IIP arose where executors’ only option to pay IHT was to sell property (First-tier Tribunal) | Practical Law (thomsonreuters.com)
Contentious estates – delay as a defence in probate claim
McElroy v McElroy, 2023 EWHC 109 Ch is a case that demonstrates the circumstances in which the doctrine of laches can be used to defeat a probate claim. In this case, the brother of the deceased made a claim to revoke a grant of letters administration made to the deceased’s widow nine years previously. The estate had been fully distributed to the widow. The brother argued that the deceased had been domiciled in Scotland at his death, meaning that a previous Will he made before his marriage should not be treated as revoked under Scottish law and remained valid. That Will made the brother the sole beneficiary of the £490,000 estate. Laches can be raised where the claimant has delayed asserting their rights such that it would be unfair for the court to grant relief. The doctrine is generally an equitable defence and the court decided that it was possible for the defendant to raise it in this case. The amount of time that had passed since the completion of the administration made it unconscionable for the brother to recover from the widow the estate assets she had received. The fact that the brother had no good reason for the delay, was also a factor. Delay is valid defence to probate claim in certain circumstances (High Court) | Practical Law (thomsonreuters.com)
Estate administration – review of funeral services
On 27 January, the Competition and Markets Authority (“CMA“) published its first annual review of market outcomes in the funerals sector. The Funeral Markets Investigation Order 2021 had implemented a package of remedies to address problems with competition within the sector including the introduction of transparency rules. The CMA concludes in their review that the transparency rules are having a constraining effect on funeral prices after many years of real-terms rises. Review of funerals market – GOV.UK (www.gov.uk); CMA publishes review of outcomes in funeral sector following Funeral Markets Investigation Order 2021 and further guidance | Practical Law (thomsonreuters.com)