Overhauled Scottish succession
LNB News 13/05/2009 8
Published date: 13 May 2009
Jurisdiction: Scotland
Related legislation: Succession (Scotland) Act 1964; Civil Partnership Act 2004
Related digests: LNB News 01/04/2009 64
Abstract: The Commission's aim is to simplify the law radically by easily understood providing rules that reflect the nature of family structures in contemporary Scotland. John Forsyth discusses the issues with president of the Scottish Family Law Association, Elizabeth Welsh
Analysis: The last major consolidation of the law of succession in Scotland was the Succession (Scotland) Act 1964. The spectrum of family relationships to be found commonly in Scotland has transformed dramatically in the intervening 40 years.
The Law Commission report (SCOT LAW COM No 215) acknowledges that some of these changes have already been reflected in new legislation. "In particular, the Civil Partnership Act 2004 has given same-sex couples legal parity with married couples. However, in our view the law has not kept pace with all the changes which are occurring. For instance, many more people are cohabiting either in same-sex or opposite-sex relationships. Step-families are becoming more common. People are living much longer so that many children are middle-aged or older when their parents die, leading to difficult questions about the protection to be afforded to children who are adults at the time of the parent's death. And wealth is more widely distributed, particularly through increased ownership of heritable property."
The 198-page report deals with the rights of spouses and cohabitees (and sometimes there may be both) and all the children of a deceased where there is a will and where there isn't. It establishes principles that overrule attempts of the deceased to disinherit either partner or issue and gives spouses and/or cohabitees and issue clear priority over siblings and parents as regards rights of inheritance.
The Law Commission recommends the surviving spouse or civil partner should gain entitlement to the whole of the deceased's estate up to a threshold value, recommended to be £300,000. Above the threshhold the remainder of the estate will be shared equally between the spouse or civil partner and the deceased's issue, that is, his children and grandchildren.
Where there is no surviving spouse or civil partner, the deceased's issue will inherit the whole estate.
The Report recommends that cohabitants should be entitled to a percentage of what they would have received if they had been the deceased's spouse or civil partner. The appropriate percentage will be determined by considering only the length and quality of the cohabitant's relationship with the deceased.
If there is a will and the deceased's surviving spouse or civil partner is disinherited, the report recommends that they will be entitled to a legal share amounting to 25 per cent of what they would have inherited if the deceased had died intestate.
Extension of agricultural property and woodlands relief
IHT agricultural property relief and woodlands relief extended onwards to property in the European Economic Area (EEA)
The Finance Bill 2009 will introduce legislation to extend inheritance tax (IHT) agricultural property relief and woodlands relief from 22 April 2009 onwards to property in the European Economic Area (EEA). Any IHT due or paid from 23 April 2003 will become eligible for relief by claim from 21 April 2010. Property qualifying for this extended IHT relief will also qualify for capital gains tax hold over relief, as will disposals of such agricultural property in the past including property farmed by a person other than the owner. Claims for hold over relief relating to 2003/04 can be made until 31 January 2010 and for the years 2004/05 and 2005/06 prior to 1 April 2010.
Articles
I will survive
LNB News 05/05/2009 25
Published date: 4 May 2009
Author: Malcolm Finney
Journal name: Solicitors Journal
Journal date: 24 March 2009
Journal citation: 153 SJ 11, 14
Jurisdiction: England; Wales
Abstract: Solicitors Journal, 24 March 2009: Survivorship clauses have outlived their usefulness and they could now make the inheritance tax position substantially worse
Summary: Informs survivorship clauses appear in most will precedents. The wording used does not vary wildly, ranging from: "My estate is to be divided as if any person who dies within one month of my death had predeceased me" to: "If my wife survives me by thirty clear days then..." and: "I give...to...absolutely but contingently upon his surviving me for one calendar month...". It is, however, arguable that such a clause has never really been of great general benefit and, in view of the newly introduced transferable nil rate band for inheritance tax purposes in late 2007, it has now completely outlived its usefulness.
Family: A fine distinction
LNB News 27/04/2009 20
Published date: 27 April 2009
Author: David Burrows
Journal name: New Law Journal
Journal date: 24 April 2009
Journal citation: 159 NLJ 577
Jurisdiction: England; Wales
Related legislation: Human Rights Act 1998
Related cases: Ratcliffe v Secretary of State for Defence [2009] All ER (D) 25 (Feb)
Abstract: New Law Journal, Issue 7366: How do judicial review and discrimination apply to war pensions and unmarried partner?
Summary: Explains why Ratcliffe v Secretary of State for Defence should be compulsory reading for all family practitioners. Ratcliffe shows the Court of Appeal carefully analysing a Human Rights Act 1998 issue, in this case in the field of discrimination. It provides an example of a meticulous approach to the exercise of a judicial discretion; and in that wider context, the judgment is of value, to judge and practising family lawyer alike.
Expertise in inheritance tax 'can reduce bill'
LNB News 23/04/2009 16
Published date: 23 April 2009
Issue date: 22 April 2009
Issuing department: Professional Contractors Group
Jurisdiction: England
Website: View the PCG report
Abstract: PCG state report claims it is important to "know the inheritance tax threshold"
Summary: Announces freelance consultants and contractors who have, or are due to, gain money from a will may be interested in a new study which advises how to reduce their bill. The Professional Contractors Group, on 22 April 2009, state that according to a Norwich Union report, it is important to know the inheritance tax threshold (IHT) as confusion can lead to paying more than is necessary. A total of 21 per cent of respondents to the survey said they do not know how much they have to pay, with 24 per cent believing the threshold is higher than it actually is. Estate planning can lower the amount paid, according to the firm's senior marketing manager Nicholas Burton. "Even with current fluctuations in the housing market, people still need to be aware that property can easily push them over the threshold," he said. "IHT is not just for the super rich - many of our customers are mystified by the current system."
LNB News 13/05/2009 8
Published date: 13 May 2009
Jurisdiction: Scotland
Related legislation: Succession (Scotland) Act 1964; Civil Partnership Act 2004
Related digests: LNB News 01/04/2009 64
Abstract: The Commission's aim is to simplify the law radically by easily understood providing rules that reflect the nature of family structures in contemporary Scotland. John Forsyth discusses the issues with president of the Scottish Family Law Association, Elizabeth Welsh
Analysis: The last major consolidation of the law of succession in Scotland was the Succession (Scotland) Act 1964. The spectrum of family relationships to be found commonly in Scotland has transformed dramatically in the intervening 40 years.
The Law Commission report (SCOT LAW COM No 215) acknowledges that some of these changes have already been reflected in new legislation. "In particular, the Civil Partnership Act 2004 has given same-sex couples legal parity with married couples. However, in our view the law has not kept pace with all the changes which are occurring. For instance, many more people are cohabiting either in same-sex or opposite-sex relationships. Step-families are becoming more common. People are living much longer so that many children are middle-aged or older when their parents die, leading to difficult questions about the protection to be afforded to children who are adults at the time of the parent's death. And wealth is more widely distributed, particularly through increased ownership of heritable property."
The 198-page report deals with the rights of spouses and cohabitees (and sometimes there may be both) and all the children of a deceased where there is a will and where there isn't. It establishes principles that overrule attempts of the deceased to disinherit either partner or issue and gives spouses and/or cohabitees and issue clear priority over siblings and parents as regards rights of inheritance.
The Law Commission recommends the surviving spouse or civil partner should gain entitlement to the whole of the deceased's estate up to a threshold value, recommended to be £300,000. Above the threshhold the remainder of the estate will be shared equally between the spouse or civil partner and the deceased's issue, that is, his children and grandchildren.
Where there is no surviving spouse or civil partner, the deceased's issue will inherit the whole estate.
The Report recommends that cohabitants should be entitled to a percentage of what they would have received if they had been the deceased's spouse or civil partner. The appropriate percentage will be determined by considering only the length and quality of the cohabitant's relationship with the deceased.
If there is a will and the deceased's surviving spouse or civil partner is disinherited, the report recommends that they will be entitled to a legal share amounting to 25 per cent of what they would have inherited if the deceased had died intestate.
Extension of agricultural property and woodlands relief
IHT agricultural property relief and woodlands relief extended onwards to property in the European Economic Area (EEA)
The Finance Bill 2009 will introduce legislation to extend inheritance tax (IHT) agricultural property relief and woodlands relief from 22 April 2009 onwards to property in the European Economic Area (EEA). Any IHT due or paid from 23 April 2003 will become eligible for relief by claim from 21 April 2010. Property qualifying for this extended IHT relief will also qualify for capital gains tax hold over relief, as will disposals of such agricultural property in the past including property farmed by a person other than the owner. Claims for hold over relief relating to 2003/04 can be made until 31 January 2010 and for the years 2004/05 and 2005/06 prior to 1 April 2010.
Articles
I will survive
LNB News 05/05/2009 25
Published date: 4 May 2009
Author: Malcolm Finney
Journal name: Solicitors Journal
Journal date: 24 March 2009
Journal citation: 153 SJ 11, 14
Jurisdiction: England; Wales
Abstract: Solicitors Journal, 24 March 2009: Survivorship clauses have outlived their usefulness and they could now make the inheritance tax position substantially worse
Summary: Informs survivorship clauses appear in most will precedents. The wording used does not vary wildly, ranging from: "My estate is to be divided as if any person who dies within one month of my death had predeceased me" to: "If my wife survives me by thirty clear days then..." and: "I give...to...absolutely but contingently upon his surviving me for one calendar month...". It is, however, arguable that such a clause has never really been of great general benefit and, in view of the newly introduced transferable nil rate band for inheritance tax purposes in late 2007, it has now completely outlived its usefulness.
Family: A fine distinction
LNB News 27/04/2009 20
Published date: 27 April 2009
Author: David Burrows
Journal name: New Law Journal
Journal date: 24 April 2009
Journal citation: 159 NLJ 577
Jurisdiction: England; Wales
Related legislation: Human Rights Act 1998
Related cases: Ratcliffe v Secretary of State for Defence [2009] All ER (D) 25 (Feb)
Abstract: New Law Journal, Issue 7366: How do judicial review and discrimination apply to war pensions and unmarried partner?
Summary: Explains why Ratcliffe v Secretary of State for Defence should be compulsory reading for all family practitioners. Ratcliffe shows the Court of Appeal carefully analysing a Human Rights Act 1998 issue, in this case in the field of discrimination. It provides an example of a meticulous approach to the exercise of a judicial discretion; and in that wider context, the judgment is of value, to judge and practising family lawyer alike.
Expertise in inheritance tax 'can reduce bill'
LNB News 23/04/2009 16
Published date: 23 April 2009
Issue date: 22 April 2009
Issuing department: Professional Contractors Group
Jurisdiction: England
Website: View the PCG report
Abstract: PCG state report claims it is important to "know the inheritance tax threshold"
Summary: Announces freelance consultants and contractors who have, or are due to, gain money from a will may be interested in a new study which advises how to reduce their bill. The Professional Contractors Group, on 22 April 2009, state that according to a Norwich Union report, it is important to know the inheritance tax threshold (IHT) as confusion can lead to paying more than is necessary. A total of 21 per cent of respondents to the survey said they do not know how much they have to pay, with 24 per cent believing the threshold is higher than it actually is. Estate planning can lower the amount paid, according to the firm's senior marketing manager Nicholas Burton. "Even with current fluctuations in the housing market, people still need to be aware that property can easily push them over the threshold," he said. "IHT is not just for the super rich - many of our customers are mystified by the current system."
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