The Inland Revenue’s guidelines state that you have to value all assets as if each item had been sold on the date the deceased died.  This is called the ‘open market value’.  It is best practice to instruct a Chartered Surveyor to prepare the valuation, and particularly where Inheritance Tax is payable, three valuations should be obtained.  The valuer should provide an open market value at the date of death and they should take into account the estate of repair of the property (which may decrease its value) and any features that might make it attractive to a builder or developer, such as a large garden or access to other land that is suitable for development (which may increase its value).

If there is a range of values for the property, we would adopt a value that is somewhere in between the highest and lowest values you have got.   If the property ultimately sells for more or less than the original valuation then you may need to correct the figure with the Inland Revenue.

Case law points out that if the property is going to change condition, then you need to have full evidence and a report of the condition prior to improvement, and although it is extremely difficult to get a busy district valuer round to have a look, where the valuation could later be disputed, every effort should be made to do so.

For advice in relation to the administration of an Estate, please contact me.

Nikki Beggan 
F.Inst.L.Ex.
Private Client Team 

Private Client Team Profile

The leaflet tells us that ‘The best thing about collecting in Christian Aid Week is knowing that thousands of others are doing the same and together we are making a difference’.

Last year the fantastic sum of £12.5m was raised to support some of the poorest communities around the world. Working through 507 local organisations in 47 countries, providing urgent, practical and effective assistance. For example new tools and farming techniques are taught and it’s a new dawn for a fishing community supported by CA partner the Methodist Church of Sierra Leone.

So it’s out into my designated roads clutching my red bag and Day 1 is delivering the envelopes, no problem with that. 2 days later however I return with some trepidation to collect the envelopes. Of course, some householders say ‘No’. Still, I ring the door bells as I have done for the last 12 years and several householders give me a friendly greeting and have their envelope ready for me. One home welcomes me in for coffee, next door I am given a whisky bottle filled with small change. Brilliant! Then on the way back home I meet up with the CA collector doing my road!!

A good job, well done. Find out more at christianaid.org.uk or by calling 020 7523 2225.

Judy

Judy Dyke TEP
Partner & Head of Private Client Team
Private Client Team Profile

Contact Judy

At Tyndallwoods, we always recommend clients consult a Solicitor in relation to the drafting and signing of their Will to ensure that their Will is signed and witnessed correctly.  Detailed file notes completed by your Solicitor can also help to ensure your Will is robust against challenge.

We outline details of the recent case below.

Barrett v Bem & Others [2012] EWCA Civ 52

Did Martin Lavin who died on 11 January 2004 make a valid will on the day of his death?

The case had been tried twice, once in 2009 and again in 2011.  In the first trial the alleged will was successfully challenged by one of the deceased’s nephews, Michael, that the deceased had not in fact signed it.  At the second trial the same challenge failed and the judge found in favour of the disputed will on the basis that it was signed at Martin’s direction by his sister Anne, who was the only person to benefit under the will.

The subsequent appeal by Michael was brought on two grounds:

i) The facts found by the judge did not amount in law to a direction to Anne to sign the will on Martin’s behalf; and

ii) Since it was the sole beneficiary of the Will who signed it, it ought to be declared invalid on grounds of public policy. There is a statutory rule that says that if a beneficiary of the Will is also a witness, their gift is invalid and Michael’s argument was that this situation was similar.

Having said at the first trial that Martin had signed the will unaided, the witnesses to the will changed their evidence at the second trial, that they remembered Anne holding Martin’s hand in hers and “between the two of them they signed the will” thus the case advanced at the second trial, that Martin signed the will himself, with the aid of Anne in holding his hand to stop it shaking. On expert evidence the judge was satisfied that Martin did not sign the will and that Anne signed the will at Martin’s direction.

Lord Justice Lewison concluded :

(1) it is not enough for a third party to sign the will in the presence of the testator.  He must have done so at the direction of the testator.  The requirement in section 9(a) of the Wills Act 1837 is that there must be a direction to sign and this suggests a more active role on the part of the testator than a mere acknowledgement.  The testator had to make some positive communication either verbal or non-verbal of his desire that someone else could sign the will on his behalf and there had to be something to make it clear to the attesting witnesses that the testator was adopting the third party’s signature as his own.

There had been no such finding of fact in either trial, nor was there evidence to support a finding that Mr Lavin had asked Anne to step in and sign the will, or that she had asked him if she should sign before she stepped in.  The fact that Mr Lavin had wanted to make a will and had tried and failed to sign it personally was insufficient to amount to a direction to Anne on his behalf.  The evidence fell short of establishing any positive communication by Mr Lavin directing Anne to sign the will.

(2) It is undesirable that beneficiaries should be permitted to sign a will in their own favour in any capacity; and Parliament should consider changing the law to ensure that this cannot happen in the future

If you would like any information about Wills, please do not hesitate to contact me.

Nicola Beggan
F.Inst.L.Ex.
Private Client Team
Private Client Team Profile

There are practical things to be done.  It is important that income is maximised by claiming the relevant State benefits.  Managing care costs can be made easier and therefore less expensive by having in place appropriate arrangements for financial support being given by family or friends – that can involve nominations, adjustment of access to accounts and Lasting Powers of Attorney.  Fluent financial arrangements save costs.

 The costs of care do fall arbitrarily on some rather than others.  It is my view that in the current discussions about reform of the system a cap on the cost for each individual would be sensible, based on all of us in the society spreading the risk and sharing the total cost.

The government’s response to the Dilnot report is late and still awaited.  The extent to which the government is willing to subsidise introduction of the new proposals is on the one hand unclear but on the other hand unlikely to be generous.

Private insurance arrangements are presently underdeveloped and unlikely to come more helpfully to the market while there is uncertainty about  government policy.  Some steps in relation to care fee planning have definite down sides – equity release and transferring properties at the last minute to avoid claw back are issues often raised with us by clients where in context we think that they are inappropriate.

Our advice is to be aware of the present environment and take appropriate practical steps.

For advice in relation to care or for more information, please contact me.

Mike Dyer
Partner in Private Client Team

Private Client Team Profile

mdyer@tyndallwoods.co.uk
0121 693 2222

Earlier this month the High Court ruled concerning “Possession of body where deceased domiciled outside England and Wales”

The High Court granted letters of administration (like a Grant of Probate but where there is no Will) allowing the daughter and partner of a deceased Filipino congressman to take possession of his body and arrange his funeral, contrary to the wishes of his estranged second wife.

While the daughter had a right to possession of the body as the administrator of her father’s estate, the court exercised its power under section 116 of the Senior Courts Act 1981 to appoint the partner to act as administrator jointly with the daughter. There were special circumstances allowing this because the law of the deceased’s domicile (the Philippines) gave precedence to the deceased’s wish that his partner should make the arrangements and the daughter accepted this.

This case shows how the court approaches the question of entitlement to possession of a deceased’s body where the deceased was domiciled outside England and Wales. The decision also confirms that a deceased’s personal representatives (executors or administrators) are entitled to have regard to the deceased’s wishes but are not bound by them. Peter Smith J held that there was no further application of human rights concepts, such as freedom of religion or the right to a private and family life.

We are happy to discuss your funeral wishes with you and we encourage you to include them in your Will or a letter of wishes. We always support you to consider the non-financial aspects of your Will to ensure matters proceed as smoothly as possible at what is already an incredibly difficult time for your family and friends.

If you would like to talk about this issue, please get in touch.

Judy Dyke TEP
Partner and Head of the Private Client Team

t: 0121 693 2222
e: click here

Private Client Team Profile

After taking care of loved ones, please give a thought to your favourite charity and leave a gift to them in your Will. It is only a small world, support the work of a charity that you care a lot about.  74% of us will have supported a charity in our lifetime, so please forgive us when we introduce the possibility of a gift to charity in the conversation when we take instructions in connection to writing or updating your Will.

For more information about remembering a charity in your Will, please contact me.

Judy Dyke TEP
Partner & Head of the Private Client Team
Private Client Team Profile

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High value settlements are a small minority of cases. In most divorces the difficulty is to share overstretched resources and particularly consider the needs of dependent children. There is no one size fits all divorce settlement.

If you need advice about your particular circumstances please email me through the Contact Us page or give me a call.

 Mike Dyer
Partner
Private Client & Family Law Team

 Family Team Profile

One of the most important things that parents can do, where possible, is to come to an agreement about contact with children.  The issue is best considered as being about the welfare of the children rather than the rights of the parents.  Easily said but sometimes difficult to achieve.  Just under 4 million children live without their fathers and so it is an important social, political and personal issue.  There is currently government interest to reinforce the rights of a child to grow up knowing and having access to and contact with both parents.

For some parents dealing with children issues is more of a priority and a problem than dealing with the financial circumstances of relationship breakdown, divorce or separation.

For sympathetic advice please contact me through the contact us page or by telephone 0121 693 2222.

Mike Dyer
Partner
Private Client & Family Law Team

 Family Team Profile

At the beginning of December we joined with clients and friends of Tyndallwoods to turn on the lights of our Tree of Light in support of Birmingham St Mary’s Hospice.

Each Light is dedicated and shines in memory of a loved one.  The Tree will stand in our office garden here at 29 Woodbourne Road during the Christmas season.