Probate lawBy Lesley King, College of Law, LondonMerged pre-action protocolThe Lord Chancellors Department is preparing a merged pre-action protocol for probate and trusts.
The draft can be read on the Association of Contentious Trust and Probate Specialists Web site.Where protocols exist even in draft, it is advisable to follow them.
In Richard Thurber Carlson v Karen Townsend (C0101101) LTL 10 April 2001 the Court of Appeal recently considered pre-action protocols (though in the context of personal injuries).It said: The use of the protocol was not limited to fast-track cases.
The spirit, if not the letter of the protocol, was equally appropriate to some higher value claims.
In accordance with the sense of the civil justice reforms, the court expected to see the spirit of reasonable pre-action behaviour applied in all cases, regardless of the existence of a specific protocol.Relevant business assetMallender and Others (as Executors of the Will of Captain Patrick John Boteler Drury-Lowe Deceased) v IRC (C0700011) LTL 30 March 2001The Capital Taxes Office has appealed successfully from the decision of the special commissioners in the above case.
The deceased had charged land to the bank as security for a guarantee given by the bank as part of his funds at Lloyds.
Did the land underlying the guarantee qualify as a relevant business asset for the purposes of business property relief under Inheritance Tax Act section 104(1)?Mr Justice Jacob held that it did not.
The issue was simply whether the property was itself used in the business and it was not; there was no nexus between the business and the charge over the property.
It must be said that the approach of the special commissioner has a certain attraction.
In his view: To say that the property was not one of the assets used in the business of D was to look at Ds business with blinkers.
The guarantee that D required in order to carry on in business was only available to him upon provision of security, which in this case took the form of the property.
It followed that the property was one of the assets used in Ds business.
Joint bank accountsAroso v Coutts & Co (C0101030) LTL 30 March 2001 This case deals with the vexed question of ownership of joint bank accounts.The deceased opened a bank account with Coutts in 1974 in his sole name.
From time to time, he altered the bank mandate to allow various members of his family to act as co-signatories.He became estranged from his family, deleted his daughter asco-signatory and added a third party, C.
Shortly afterwards he closed the account and opened a joint account in the names of himself and C.On his death the bank paid out the money on Cs instructions.
The claimant alleged that the assets had been held by the deceased and C on resulting trust for the deceased and the bank had paid them out in breach of trust.Mr Justice Lawrence Collins agreed that there was a presumption of a resulting trust but that this was rebuttable.
The clear terms of the bank mandate and investment agreement and evidence given by the bank of a meeting at which the effect of the doctrine of survivorship was explained was sufficient to rebut the presumption.LINKS: www.actaps.com Association of Contentious Trust and Probate Specialists
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