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Issue 47 – June 2010 

 
Welcome to the Probate Section e-alert.


Case Analysis - from Lesley King

All cases and legislation have been collated by the Law Society Library, with all cases linked in full to BAILII


The Fundacion Gala-Salvador Dali case is an interesting reminder of the rules of the artists’ resale right introduced by European States to comply with the requirements of Directive 2001/84.  The resale right accords the authors of any work of graphic or plastic art to receive a royalty based on the sale price obtained for any resale of the work, after the first transfer of the work by the author. Article 8 provides that it is to be paid “to the author of the work and…. after his death to those entitled under him/her”.


Salvador Dalí died in 1989 in Spain, leaving five heirs at law. By will, he appointed the Spanish State as sole legatee of his intellectual property rights. Those rights are administered by the Fundación Gala'Salvador Dalí, a foundation established under Spanish law to deal with income arising from his works.

The Fundacion had not been able to collect anything in France in relation to the resale right because the French Intellectual Property Code, which gave effect to the directive, provides that the resale right “shall pass to the author's heirs… to the exclusion of any legatees and successors in title”. The Fundacion argued that this was not permissible and the income should be paid to it as the beneficiary of Dali’s will and not to his heirs.

The European Court did not agree. Member states can make their own legislative choice in determining the categories of persons capable of benefiting from the resale right after the death of the author of a work of art.

In the UK, the Resale Right Regulations 2006 (2006/346) came into force on 14 February 2006 to give authors the required resale right. The amount of the royalty is based on the sale price (denominated in euro). Regulation 12(3) provides that an art-market professional must be involved in the sale, either as principal or agent, and imposes a minimum price threshold of 1,000 euro.

Regulation 9 provides that resale right is transmissible as personal or moveable property by will or on intestacy.  PRs administering the estate of an artist may be affected by the regulations in two ways:
1. An outstanding liability for the royalty is a debt which will reduce the IHT value of a seller’s estate.
2. An artist’s right to royalties under these regulations will be an asset of his or her estate and will need to be investigated and valued.

Meanwhile, the complainant in Roberts v Gill has finally come to the end of the road and had his application to amend dismissed on the basis that it was time barred. Readers with long memories may recall that a testatrix directed that if her grandson, John Roberts, paid all the IHT on her estate (or provided security acceptable to the trustees for the IHT) he would receive all the residuary realty apart from one piece which was to pass to her other grandson, Mark Roberts. In default, the residuary realty was to be divided three ways between John, Mark and the testatrix’s daughter, Jill.

The executors renounced probate and John obtained letters of administration with the will annexed. He administered the estate on the basis that he had complied with the testatrix’s requirements and sold the land. He disappeared with the proceeds leaving most of the IHT unpaid. Mark alleged negligence on the part of two firms of solicitors involved but has finally lost.


 

Private Client - General

Wills

  • Case: Roberts v Gill & Co [2010] UKSC 22
    The applicant beneficiary sought to amend proceedings in a claim for negligence against solicitors so as to allow him to continue the claim in a representative capacity on behalf of the estate.  The Supreme Court dismissed the application and ruled that the amendment sought was time barred by virtue of the Limitation Act 1980 section 35(6)(b).
  • Case:  Vinton v Fladgate Fielder (a firm) [2010] EWHC 904 (Ch)
    The beneficiaries of a will brought a claim for damages against a firm of solicitors for breach of its duty of care.  The firm applied to strike out the claim and obtain summary judgment.  The Court dismissed the firm’s application and found that it had failed to establish that there were no reasonable grounds for bringing the claims against them.
  • Case: Fundacion Gala-Salvador Dali v Societe des Auteurs dans les Arts Graphiques et Plastigues (ADAGP) (C-518/08) 15 April 2010 (European Court of Justice)
    The European Court of Justice has ruled that Directive 2001/84/EC on the resale right for the benefit of the author of an original work must be interpreted as not precluding a provision of national law.  In the opinion of the Court after an artist’s death the entitlement to the resale right passes to the heirs at law, to the exclusion of testamentary legatees.
  • Consultation: Responses to Ministry of Justice consultation: Civil Law Reform Bill
    Responses of the Association of HM District Judges, the Council of Her Majesty's Circuit Judges, the Law Reform Committee of the Bar Council, the Association of High Court Masters and the Bar Standards Board to the Ministry of Justice consultation “Civil Law Reform Bill” are available on the website of the Justiciary.  The original consultation which closed on 9 February 2010 is available here.  The consultation sought views on proposals on various topics including distribution of estates on death.  The reforms set out in Part 3 of the draft Civil Law Reform Bill refer to situations where there is a forfeiture or disclaimer of an interest on intestacy or a gift in a will.  The reforms also proposed a change to the law where a person under the age of eighteen loses a benefit on intestacy by dying without having married or forming a civil partnership and leaves children.

Mental Capacity

Trusts 

Tax

FAQs

I am instructed by two residuary beneficiaries in a probate matter. The lay executor is not represented and is being obstructive and is deliberately delaying the administration of the estate. Is it possible to make an application to have the executor removed and have our clients substituted instead?


Please note:
This FAQ is published by the Law Society’s Practice Advice Service, tel 0870 606 2522. Comments relating to the questions should be sent to Ms Nasrin Master, Practice Advice Service Manager, The Law Society, 113 Chancery Lane, London, WCA 1PL.

While every effort has been made to ensure the accuracy of the information in this faq, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given

Forum

  • Charitable status of churches
    I have a taxable estate where we have a small donation going to a Church of England Church. Do the Inland revenue treat Cof E churches as a charity automatically or only where the specific church is registered as a charity?


Previous member poll results

  • On the topic of Independent Social Work Experts (ISWs) fee cuts, we asked you:

‘Do you agree with the Ministry for Justice’s proposal to cut fees paid to Independent Social Work Experts (ISWs) in family court cases?


60 % of you answered, Yes, and 50 % is a fair cut  
20 % of you answered, Yes, but 50 % is too large a cut
20 % of you answered, No

 
Events and information         

  • Probate Section Annual Conference – limited places available: BOOK NOW!
    2 July 2010 at the Victoria Park Plaza hotel, sponsored by Certainty and Kin.
    Senior District Judge Waller will give the keynote address on the new NCPR rules, and plenary sessions will include a capital tax, and an annual probate update.
  • £150 + VAT – Member price; £75 + VAT – Additional delegate from the member’s firm
  • £350 + VAT – Non-member price; £175 + VAT – Additional delegate from the same
  • Probate Webinar Series – FREE to members
    This year’s Probate webinar series, sponsored by Fraser and Fraser,  will run from early June to late September, on topics highly relevant to probate and private client practitioners and conducted by lecturers who are acknowledged experts in their fields. 
     Each session provides one CPD hour.   
  • CPD Centre – search over 1,000 courses online!
    - Free to use, the Law Society’s new online CPD Centre enables you to:
    - Search over 1,000 courses from leading training providers
    - Plan, track, and record your CPD online
    - Find and take Law Society online courses.

Discounts

  • Precedent library for the General Practitioner
    Comprehensive, cost-effective access to precedents most commonly used on a day to day basis. Complete with individual commentaries, and CD-ROM
  • Execution of Documents (2nd Edition)
    Practical and user-friendly guide, covering documents such as deeds, contracts, powers of attorney, and those used in litigation. 2nd edition also features a chapter dealing with notarisation and covers new methods of signing documents including the use of electronic signatures.

NB. This is intended for information only, and does not represent legal advice on which reliance should be placed.


 

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