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Trusts and Estates Law and Tax Journal: April 2012

Richard Selwyn Sharpe examines how a gift in contemplation of death is treated in the modern world

Donatio mortis causa or a ‘gift in contemplation of death’ is an anomaly of English law with a long history springing from a Roman law concept. The doctrine developed in the 18th century in response to the Statute of Frauds 1677, which provided that all wills that bequeathed property worth more than £3 had to be proved by at least three witnesses present when the will was made, and that the will had to be reduced to writing within six days of its making. The last landmark decision, that of the Court of Appeal in Sen v Headley [1991], extended the doctrine to unregistered land. It is a hybrid form of gift, conditional on the death of the donor and only fully operational on their death.

Nicholas Le Poidevin QC introduces an issue devoted to articles by New Square Chambers

No doubt it is true that people do not deliberately arrange their affairs so as to provide employment for the private client lawyer. Benevolence towards the legal profession only goes so far. But appearances are sometimes to the contrary. Settlors and testators seem to go out of their way to raise difficult legal points and there is an old story that an 18th-century lawyer left a will intentionally worded so as to test some of the conundrums that had puzzled him while in practice.

Jane Evans-Gordon discusses the quandaries that can arise on the disposal of a dead body

Thomas Mann said that ‘It is a fact that a man’s dying is more the survivors’ affair than his own’.

Charles Holbech reviews the importance of a medical opinion for the aged or infirm testator

In Re Simpson [1977] Templeman J said that:

Mark Hubbard explains the ramifications of a case in which the Court of Appeal upheld an order against settlors to disclose trust documents under their ‘control’

In the recent case of North Shore Ventures Ltd v Anstead Holdings Inc [2012], the Court of Appeal held that the court was entitled to infer that there was ‘some understanding or arrangement’ between settlors and trustees, by which the latter were to act on the instructions of the former. In that situation the court was entitled to regard documents in the possession of the trustees relating to the administration of the trust as documents in the ‘control’ of the settlors for the purposes of disclosure within the meaning of CPR r31.8 and which the settlors could be compelled to produce on examination as judgment debtors under CPR r71.2(6)(b).

The Court of Appeal’s decision in Marley v Rawlings was the correct one, as Alexander Learmonth reports

Much to the dismay of the popular press, the Court of Appeal on 2 February 2012 dismissed Mr Marley’s appeal from the judgment of Proudman J, refusing to admit to probate as the late Mr Rawlings’ will the one prepared for his wife, but which he had signed in error. The media coverage of the case has not always appreciated that this result will make no difference to Mr Marley at all, since he has a clear claim in professional negligence against the solicitor responsible for the error, under familiar White v Jones [1995] principles. But with a ‘windfall’ to the Rawlings’ two sons, and the prospect of other cases where there is no professional to blame, it is nonetheless a case that has provoked strong feelings on both sides.

Thompson v Bee highlights the disputes over rights of way that can arise from inconsistent will drafting, as James Thom QC relates

On the death of a landowner who is not intestate, the land will vest in the deceased’s personal representatives. Under the will, the land may be split up and different parcels may be devised to different members of the family. The land will initially vest in the executors. They in turn vest the land in the devisees of the land by executing an assent.

Leigh Sagar clarifies the occupation of agricultural property for agricultural purposes

Agricultural property relief is available for transfers of agricultural land and pasture and specified buildings and woodlands within the UK, the Channel Islands and the Isle of Man. It need not be claimed and can apply to property held absolutely or on trust and whether or not a beneficiary has a qualifying interest in possession. The land may be freehold or leasehold and owned by an individual, a company or as a partnership asset. The relief operates to reduce such part of the value transferred by the relevant transfer of value as is attributable to the agricultural value of the property; this value is reduced by either 50% or 100%, depending on the interest of the transferor in the land and other specified conditions. The expression ‘agricultural value’ means the price that the property would fetch if it were sold subject to a perpetual covenant prohibiting its use otherwise than as agricultural property; this excludes any value attributable to such uses as mining and development. (See ss115-116 of the Inheritance Tax Act 1984 (the 1984 Act)).