Probate law

Excepted estates, increase in limit.

The Inheritance Tax (Delivery of Accounts) Regulations 2000 (No 967) increase the limit for excepted estates for deaths on or after 6 April 2000.The first four conditions remain the same, so:X the deceased must have died domiciled in the UKX the value of the estate must be attributable only to property passing by will or on intestacy, under a nomination or by survivorship - in other words there must be no trust property included.X The estate must contain no more than 50,000 of non-UK property;X The deceased must have made no chargeable transfers during the seven years before death other than specified transfers the aggregate of which does not exceed 75,000 ('specified transfers' are transfers of cash or quoted shares and securities).The limit in the final condition has been increased by 10,000, so:X The aggregate of the gross value of the estate and of the value transferred by any specified transfers must not exceed 210,000.Although the regulation only came into force on May 1 2000, it applies to deaths occurring on or after April 6.

Basis for valuation of partnership asset on partner's death

Re White (deceased), White v Minnis and another.

(Lawtel daily reports, 8 May)The Court of Appeal on 5 May 2000 allowed an appeal from the decision of Park J [1999] 2 All ER 663.

The partnership had since 1930 owned a freehold property which had always been included in the accounts at its historic cost (8,406).

Open market value was not agreed but exceeded 200,000.Under the terms of the partnership agreement the deceased's interest in the partnership accrued to his brother and his estate was to be paid 'his share in the capital of the partnership'.

The question was whether the amount of the deceased's capital account should be determined by reference to the historic cost or market value of the premises.At first instance Park J said it should be by reference to market value.

The court leans towards a valuation on this basis although it can be displaced by clear provisions in the partnership agreement or by subsequent variation by agreement or conduct.

There was some evidence of agreement on the facts but insufficient to very the normal basis.The Court of Appeal disagreed, finding that the partnership agreement did clearly establish that valuation should be by reference to historic cost.

Trustee not liable for loss arising from investment decision unless it was one no reasonable trustee could have made

Wight and Another v Olswang, The Times, 18 April 2000The defendant trustee had an absolute discretion in relation to a large holding of shares.

The trustee decided to diversify and sold the shares over a period of time.

The claimants alleged that the trustee was liable because had all the shares been sold early in the period a much higher price would have been obtained.Neuberger J rejected this.

A trustee had to act as an ordinary man of prudence in relation to his own affairs.

The claim could only succeed if no man of ordinary prudence managing his own affairs with the knowledge and experience of Mr Olswang could have retained the shares.He rejected (partly on the grounds of practicality) an argument that the test was subjective and that the court should look at all aspects of the decision-making process to see whether the trustee had done something or failed to do something which amounted to a breach.Breath test(DPP v Furby [2000] The Times, 23 MarchA motorist who had deliberately failed/refused to supply a specimen of breath for analysis cannot rely on an impediment of which he had been unaware at the time of the request to supply the specimen as providing a reasonable excuse for his failure/refusal, where the motorist at a later date discovered that he was suffering from reduced lung capacity which would have made the provision of a specimen of breath impossible).

Nor may a motorist insist on being able to consult a legal textbook before providing a specimen of breath for analysis (DPP v Noe [2000], The Times, 19 April, where the Divisional Court ruled that the motorist had no reasonable excuse for failing to supply a specimen).

Speed limit(Wawrzynczyk v Staffordshire Constabulary Chief Constable [2000] The Times, 16 March).Where a temporary speed limit is in force on a stretch of road under an order made under the Road Traffic Regulation Act 1984, s.14, the order is not invalidated by speed restriction signs so placed as to suggest that the order applied to a longer stretch of road than was in fact the case.

TachographsCantabrica Coach Holdings Ltd v Vehicle Inspectorate [2000] The Times, 13 April).The provision in s.99(1)(bb) of the Transport Act 1968 empowering an authorised person to require any person (such as an operator of goods vehicles) to produce any record sheet which that person is required to retain by art.14(2) of the Tachograph Regulation (or is required to be able to produce under art.15(7)) for inspection and copying has to be interpreted in the light of the requirement in art.14(2) to hand over such documents.

Accordingly, an authorised officer might require the documents to be handed over, although in such circumstances the operator would normally be allowed to make copies before doing so.

Use of a vehicleRichmond upon Thames London Borough Council v Morton [2000] RTR 79.It is well established that when a statutory provision refers to 'using, or causing or permitting the use' of a vehicle, the owner of the vehicle can only be treated as the person using it if he is the driver or if the vehicle is being driven by his employee for the purposes of the owner's business.

If the statute states that 'no person shall use, drive or cause or permit to be driven' any vehicle (cf the Greater London (Restriction of Goods Vehicles) Traffic Order 1985, art.3), the term 'use' must be construed more widely and may include use by any person whose vehicle is being used by him or for his purposes and on his behalf, and there is no need for a link between owner and driver in the nature of a contract of service.

Wheel-clampingVine v Waltham Forest London Borough Council, [2000] The Times, 12 AprilA wheel-clamper who has clamped a vehicle parked unlawfully has the onus of proving that the motorist saw and understood (or possibly turned a blind eye to) a notice that vehicles left in that place without permission were liable to be clamped where the motorist recovered the costs of obtaining release of her car and a small sum for the loss of its use.

by Lesley King, College of Law, London