Feb 2023

England & Wales

Law Over Borders Comparative Guide:

Private Client

Sections

Scroll down to read the full chapter or click on the headings below to jump to the relevant section.

Contributing Firm

Introduction

This chapter provides a general background to the key taxes and the legal framework in the United Kingdom of Great Britain and Northern Ireland (UK). However, it should be noted that strictly, there is no such thing as “UK law”, because the UK traditionally consists of three legal jurisdictions:

  1. England and Wales;
  2. Scotland; and
  3. Northern Ireland. 

The introduction of devolution means that Wales, Scotland and Northern Ireland are now devolved nations, and limited legislative powers have been devolved to elected assemblies in Cardiff, Edinburgh and Belfast respectively. Further to the public referendums held in September 1997, the UK Parliament passed the three devolution Acts: the Northern Ireland Act 1998, the Scotland Act 1998, and the Government of Wales Act 1998 (later superseded by the Government of Wales Act 2006). These Acts established the three devolved legislatures, giving them certain powers which were previously held at Westminster. Further powers have been devolved since, through the Scotland Act 2016 and Wales Act 2017. 

Scotland’s chapter features separately in this guide as Scotland has its own distinct legal system (and has its own limited powers to raise and lower income tax). Prior to the devolved assemblies, Wales did not have its own separate law and it is still correct, following devolution, to refer to the law of “England and Wales”. Nonetheless, there will now be some minor areas of tax law where the law in Wales will be different to that in England. For example, the Welsh parliament has some control over income tax, stamp duty and landfill tax (the latter is not examined in this chapter). Nonetheless, it is still standard practice in precedent English legal documents to refer to the law of England and Wales. 

Devolution in Northern Ireland is distinct and government powers have been divided into three categories. Legislative powers relating to capital transfer taxation rest with the UK Parliament. 

For the avoidance of doubt, the law discussed in the rest of this chapter refers just to the law of England and Wales, unless specifically stated otherwise. 

Residence, domicile and the remittance basis

Domicile is a common law concept that seeks to identify an individual’s “home”. Domicile must not be confused with nationality. A “domicile of origin” is acquired at birth. This is normally the domicile of the father if the individual’s parents are married. 

Domicile of origin may, with varying degrees of difficulty, be replaced by a “domicile of choice”. In general terms, a person may be said to be domiciled in the place where they have made their permanent home. An individual cannot have a generic ‘UK’ domicile, they will have a specific domicile within the UK, in England and Wales for example, or in Scotland or in Northern Ireland, as appropriate. 

Domicile and tax residence are separate and distinct concepts under English law. An individual can be tax resident and not domiciled. UK (all nations) tax residence is determined by a statutory residence test. A person will be regarded as UK resident if:

  • They stay in the UK for more than 182 days in any tax year.
  • They meet any of the automatic UK tests or the sufficient ties tests under the UK’s statutory residence test (SRT). 
  • Additionally, UK tax law imposes a further category for tax purposes whereby residents in the UK for 15 out of the previous 20 UK tax years become “deemed domiciled” for tax purposes. UK deemed domiciled individuals are subject to UK tax on their worldwide income and gains and, on death, their worldwide estate is chargeable to UK inheritance tax (IHT).

One of the distinguishing factors of UK taxation is the remittance basis. It enables non-domiciled individuals, to move to the UK whilst being taxed only on the post arrival income or gains they remit to the UK, in addition to any UK source income or capital gains. 

The remittance basis needs to be claimed, but it is one of the most attractive features of UK immigration for high-net-worth individuals. The remittance basis charge (RBC) is an annual charge which is paid by UK residents claiming the remittance basis. The remittance basis is free for the first seven years of UK fiscal residence. Thereafter the RBC is charged at:

  • £30,000 for non-domiciled individuals who have been resident in the UK for at least 7 of the previous 9 tax years immediately before the relevant tax year; and 
  • £60,000 for non-domiciled individuals who have been resident in the UK for at least 12 of the previous 14 tax years immediately before the relevant tax year. 

Those claiming the remittance basis will lose their entitlement to personal allowances and the capital gains tax annual exempt amount. 

There are limited exceptions where taxpayers may use the remittance basis without making a formal claim or paying the RBC if certain conditions apply, one of which is that the amount of their un-remitted foreign income and gains for the relevant tax year is less than £2,000. 

Taxation of individuals in the UK is mostly administered on a self-assessment basis. Whilst employers often deduct income tax at source, the majority of high-net-worth UK tax resident individuals will be required to provide a self-assessment tax return, reporting their taxable income and capital gains to HMRC.

UK tax years run from 6 April of one year to 5 April of the next. When filed online, tax returns must be filed by 31 January following the end of the tax year – so for example, an individual’s return for the 2023/24 UK tax year must be filed by 31 January 2025.

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1 . Tax and wealth planning

Income Tax

Applies in England and in Northern Ireland (Scotland and Wales have had partial income tax powers devolved, although the Welsh system differs only very slightly from the English system).

The income tax rates for the current tax year from 6 April 2023 to 5 April 2024 are as follows:

Band  Taxable incomeTax rate*
Personal AllowanceUp to £12,570   0%
Basic rate£12,571 to £37,700       20%
Higher rate£37,701 to £125,14040%
Additional rateover £125,140   45%

* Broadly, an extra 1% rate applies in Scotland.

Capital Gains Tax (CGT)

Applies across all devolved nations.

For the current tax year from 6 April 2023 to 5 April 2024, the standard personal allowance is £6,000, and the prevailing rates are as follows:

Band    Residential property (not a main residence) and carried interest Non-residential property
Basic rate taxpayers*18%10%
Higher or additional rate income taxpayers28%20%

Note that above this threshold, taxpayers will pay 20% or 28% on any amount above the basic tax rate.

Inheritance Tax (IHT)

Applies across all devolved nations. 

The nil rate band (NRB) tax free amount is GBP 325,000 per estate. NRBs are transferable between spouses and civil partners. Transfers of assets between spouses and civil partners are IHT exempt. Following the Spring Budget in March 2023, charitable legacies will only be IHT exempt if made to UK charities as opposed to UK, EU and EEA charities. However, this is subject to a transitional period until 1 April 2024 for EU and EEA charities.

The residence nil rate band (RNRB) of £175,000 per estate is available where an estate is below £2,000,000 and a qualifying residence is left to one or more direct descendants. The RNRB tapers down over £2,000,000 and estates over £2.35m are not eligible. The RNRB is also transferable between spouses and civil partners.

IHT remains at 40% above the balance of available NRBs and RNRBs. Although, if 10% or more of a net estate is left to charity, then the estate benefits from a reduced rate of IHT at 36% on the balance.

Annual Tax on Enveloped Dwellings (ATED)

Applies across all devolved nations. 

ATED is an annual tax payable mainly by companies that own UK residential property valued at more than £500,000. ATED, which was introduced on 1 June 2013, and associated measures have heavily discouraged the acquisition and holding of residential property through companies. 

Property value (as at 1 April 2023)Annual Charge
£500,001 to £1m £4,150
£1,000,001 to £2m£8,450
£2,000,001 to £5m£28,650
£5,000,001 to £10m£67,050
£10,000,001 to £20m£134,550
More than £20m £269,450

Stamp Duty Land Tax (SDLT) 

Applies in England and in Northern Ireland (Scotland and Wales have their own equivalent land transaction taxes).

The current SDLT threshold for residential properties before SDLT becomes payable is £250,000. There were different thresholds for residential properties before 23 September 2022. The threshold for non-residential land and properties is still £150,000. There are numerous SDLT rates depending on the circumstances, type of property and value. SDLT is charged according to a slice system, as set out below.

Importantly, if a purchaser of UK property is not present in the UK for at least 183 days (6 months) during the 12 months before purchase they are ‘not a UK resident’ for the purposes of SDLT.

Non-resident purchasers will usually pay a 2% surcharge if buying a residential property in England (or Northern Ireland) on or after 1 April 2021.

All purchasers will usually pay a 3% surcharge on top of these rates if they already own another residential property, and the purchase is not to replace their main residence.

 Residential property rates:

Property/Lease Premium value SDLT rate
Up to £250,0000%
The next £675,000 (from £250,001 to £925,000)5%
The next £575,000 (from £925,001 to £1.5m)10%
The remainder over £1.5m12%

Commercial property rates:

Property/Lease Premium value SDLT rate
Up to £150,0000%
The next £100,000 (from £150,001 to £250,000)2%
The remainder over £250,0005%

 

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1.1. National legislative and regulatory developments

The Register of Overseas Entities came into force in the UK on 1 August 2022 through the Economic Crime (Transparency and Enforcement) Act 2022. This introduces a ‘Register of Overseas Entities’ to ensure that the identities of the beneficial owners of UK property are no longer obscured behind privacy screening offshore companies, as the global push towards ownership transparency continues. This change had been tabled for some time.

Foreign companies owning UK property will now need to openly identify their beneficial owners, and register them with Companies House, bringing them into parity with UK companies owning UK property, and UK companies generally under the PSC register. This was introduced by The Small Business, Enterprise and Employment Act 2016 (implemented under The Companies Act 2006 as amended) and supplemented by The Register of People with Significant Control Regulations 2016, as of 6 April 2016, UK companies are required to keep a register identifying people who retain significant control over them, as a way to target a perceived lack of transparency over who controls companies doing business in the UK. The rules will also apply to individuals who have significant control over the foreign entity, for example if they hold 25% minimum of the voting rights or shares, they will be caught.

There are high financial penalties and criminal sanctions for failure to register where required on the ‘Register of Overseas Entities’. 

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1.2. Local legislative and regulatory developments

There have been no local legislative and regulatory developments.

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1.3. National case law developments

The case of A taxpayer v. Revenue and Customs [2022] UKFTT 133 (TC) (see www.bailii.org/uk/cases/UKFTT/TC/2022/133.html) explored HMRC’s approach to the exceptional circumstances limb of the SRT, and the conditions that must be met in order to qualify for this status, to prevent certain days spent in the UK counting towards the day count thresholds for UK tax residence. The appellant argued that her visits to the UK were exceptional, as she was required to care for her twin sister, and minor children, as a result of the twin’s alcoholism. 

HMRC did not consider these circumstances to be exceptional, on the basis that:

  1. the condition of the sister was known and the issue was therefore foreseeable when the appellant chose to take up residence outside of the UK, so would need to come back to visit; 
  2. the exceptional circumstances test does not apply to someone who has entered the UK under a moral obligation or as a matter of conscience to care for someone; and
  3. the exemption can only apply to someone who was already in the UK, and whilst they were there were ‘overtaken’ by exceptional circumstances which prevented them being able to leave (it is noted that this argument in particular was contradictory to HMRC’s guidance that someone who came to the UK due to exceptional circumstances and was then prevented from leaving due to the same circumstances should qualify). 

On these particular facts, the appellant had use of a private jet, which HMRC argued could have been used to fly in and out each day. There was also a separate history of dispute between the appellant and HMRC. The Tribunal subsequently rejected all of these arguments, considering HMRC’s approach to statutory interpretation in this case to be clearly wrong. 

The Tribunal found that Parliament had quite clearly intended to avoid injustice as to how the SRT is applied, by allowing for such exceptional circumstances, and that it cannot have been Parliament’s intention for that test to be failed if the taxpayer independently thought it necessary to be present due to some illness, or other serious health issue, suffered by a close relative. The Tribunal also criticised HMRC’s comments that the circumstances should be ‘highly exceptional, not merely unusual, and out of the ordinary in the extreme’, and that a sibling could not be within the exemption – the legislation is silent on who that person must be. Given the history between the parties, HMRC’s approach here appears unusually strict, but it is worth noting the comments both of the Revenue and the Tribunal in attempting to foresee the direction of decisions in future on the subject. 

The case of Jonathan Oppenheimer v. HMRC [2022] UKFT 00112 (TC) considered in depth the tiebreaker test to ascertain treaty residence within the double taxation agreement between the UK and South Africa. Jonathan Oppenheimer (of the family controlling the De Beers company) retained permanent homes in both the UK and South Africa, and a thorough investigative exercise was necessary to ascertain whether Mr Oppenheimer would be classed as treaty resident in the UK or in South Africa. He had received large sums from a family trust between 2010 and 2017, and whilst he accepted that he was tax resident in the UK, he did not accept that he was treaty resident in the UK. HMRC had argued that Oppenheimer was indeed treaty resident in the UK between 2010 and 2017, but Oppenheimer appealed, and ultimately won the dispute, with the First Tier Tribunal ruling that he was in fact treaty resident in South Africa during the relevant time period, despite holding extensive business interests and a long term residence in the UK. The decision was reached on the tiebreaker principle, and in the matter of Mr Oppenheimer’s centre of vital interests, it was decided that throughout the relevant period, his economic and personal relations critically remained closer to South Africa than to the UK. The Tribunal also found that Mr Oppenheimer had a habitual abode in South Africa. Since he was also a national of South Africa, this would have been determinative had it not been possible to determine his centre of vital interests, and he was found therefore to be treaty resident in South Africa. It is clear for practitioners that a wholly holistic approach was taken in arriving at this decision, and that a thorough and comprehensive analysis of the taxpayer’s lifestyle including previous family history and past relationships, interests and hobbies, economic connections, charitable and political activity, amongst other factors, all played a role in the final outcome. This demonstrates that each case in this arena will be entirely dependent on its own facts, and that in particular, it should be noted that length of tenure in one jurisdiction is not necessarily the key factor, especially where ties to prior jurisdictions have not been cut. 

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1.4. Local case law developments

There have been no local case law developments.

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1.5. Practice trends

The UK has experienced a period of political upheaval. The period commencing with the former English Prime Minister, Boris Johnson’s resignation on 7 July 2022 was followed by a leadership battle for the new Prime Minister and was won by Liz Truss, who was appointed on 6 September 2022. Her Late Majesty Queen Elizabeth II passed away on 8 September but by 20 October 2022, Liz Truss had been replaced as Prime Minister by Rishi Sunak. A large part of Liz Truss’ short tenure was due to a “mini budget” delivered on 23 September 2022 by the then Chancellor, Kwasi Kwateng. The mini budget dramatically cut taxes in a bid to spark economic growth and introduced measures such as planning the abolishment of the 45% income tax rate and reversing the plan to increase corporation tax from 19% to 25% from April 2023. The mini budget was negatively received by global markets and caused the value of the GBP to plummet. Despite the fact that the UK government reversed nearly all measures soon after, the Bank of England was forced to stablise the economy by raising base interest rates to the highest recent levels, which has increased the cost for UK borrowing and mortgages exponentially. The UK is experiencing rising inflation and a cost-of-living crisis, amidst an economic recession and a large UK Government deficit, caused partly by the COVID-19 pandemic. There has been much speculation that the UK Government will seek to repay the deficit by raising CGT rates and review the favourable remittance basis for non-UK domiciliaries. Whilst the Government have yet to increase CGT rates, from 6 April 2023, the CGT personal allowance has been halved to £6,000. Practitioners will be considering ways to “lock in” the current GGT rates for clients and will be closely monitoring any proposed reforms to the remittance basis. 

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1.6. Pandemic related developments

UK restrictions at the pandemic’s peak forced practitioners to seek guidance on permissible methods of witnessing deeds, signing wills and the validity of electronic signatures.

Deeds

Prior to the pandemic, it was accepted that deeds may be signed electronically by all parties (as confirmed by the Law Commission on 4 September 2019), however the witness must physically be present and have sight of the person making the deed.

Wills

On 7 September 2020 The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 SI 2020/952 was laid before Parliament. It amends The Wills Act 1837 to allow video-witnessing and execution of wills through a live-action video-link. It applies to wills made on or after 31 January 2020 and on or before 31 January 2024. Government advice remains that where people can make wills in the conventional way, they should continue to do so. 

Making a will where video witnessing will be performed, or obtaining probate where a will was video-witnessed or said to be video-witnessed, introduces a further level of risk which practitioners and their firms need to assess and manage. We can expect to see cases heard in the UK Courts in due course.

Statutory Residence Test – expansion of COVID-19 exceptional circumstances

HMRC recognised that COVID-19 prevented some people from going to and from the UK and may have resulted in unexpected days in the UK. Guidance in the Remittance and Domicile manual expanded on pandemic specific exceptional circumstances such as:

  • quarantining or official advice to self-isolate;
  • official Government advice not to leave the UK;
  • closure of international borders preventing leaving the UK; and
  • employer’s request to return to the UK temporarily.
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2 . Estate and trust administration

Estate administration within England & Wales is regulated by the Probate Registry, part of His Majesty Courts and Tribunal Service (HMCTS).

The type of grant of representation issued to a deceased’s estate depends on whether the deceased left a valid will. If there is a valid will, the executors apply for a grant of probate. If there is no will (or the will is invalid) the estate is “intestate”, and an application is made for a grant of letters of administration which appoints administrators. Both types of grant ultimately enable an estate to be administered, however executors’ powers to deal with assets of the estate are derived from the will itself, whereas administrators’ powers are conferred by the grant of letters of administration. Having made this important distinction and for the purposes of the rest of this section, all further references to a grant of probate and a grant of letters of administration have been shortened to the “Grant”.

Property held jointly in the UK passes by operation of the law (survivorship) to the surviving joint owner. A Grant may not, therefore, always be needed.

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2.1. National legislative and regulatory developments

Estate administration

HMCTS has digitalised the Grant application process, which for solicitors is now via an online portal. Initially the portal was limited to applications by individual executors however it is now possible to use the online portal for trust corporations acting as executors. Certain applications must still be made on paper (for instance where there is a non-UK will that is held in a foreign court and only a certified copy is available or the deceased was not UK domiciled or it is desired to re-seal a Grant obtained in another jurisdiction). 

HMCTS increased the Grant fee from £155 to £273 per application. There is no fee if the estate is valued below £4,999. The cost for copies of Grants remains at £1.50 per copy. There was some discussion around introducing a fee on a sliding scale, however this was abandoned amidst concern that this would introduce a second-tier inheritance tax by stealth. There are no current proposals to increase fees. 

In an attempt to simplify the application process, and effective 1 January 2022, significantly more non-inheritance tax paying estates will be “excepted estates”. For deaths after that date it is no longer necessary to submit form IHT205 for excepted estates where the deceased died domiciled in the UK. Applications where the deceased died up until 31 December 2021 remain unchanged.

Trusts – and the new Trust Registration Service

The Trust Registration Service (TRS) was introduced in 2017, aimed at taxable trusts. The Money Laundering and Terrorist Financing (amendment) (EU Exit) Regulations 2020) was extended to include non-taxable UK trusts as well as some non-UK trusts with some specific exclusions. Taxable trusts are registrable by 31 January (or 5 October where there is first time liability to CGT/income tax) following the end of the tax year in which the trust had a UK tax liability. Non-taxable trusts (UK or non-UK) in existence on or after 6 October 2020 require registration by 1 September 2022. 

Non-taxable trusts created on or after 4 June 2022, and those created from 1 September 2022, are registrable within 90 days of creation. Some non-UK trusts are also subject to reporting requirements. There are certain exclusions but tax tends to trump the exclusion. Practitioners need to have regard to the TRS’s wide net. Trusts of land will require registration if the beneficial and legal owners are not the same. 

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2.2. Local legislative and regulatory developments

There have been no local legislative and regulatory developments.

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2.3. National case law developments

Case law of note is addressed in detail below in Section 3. Estate and trust litigation and controversy. However, it is worth noting the key case of Re Bhusate [2020] which enabled a widow to bring a claim for financial provision 25 years and nine months after the limitation period in the Inheritance (Provision for Family and Dependants) 1975 Act. The High Court granted the deceased’s widow permission to make a claim. The appeal brought by the defendants was dismissed. The significance of this case shows that such applications may succeed even when brought out of time. 

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2.4. Local case law developments

There have been no local case law developments.

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2.5. Practice trends

Trusts

In light of the TRS’s new and more onerous requirements, practitioners and trust corporations ought to audit trusts to ensure compliance. Record keeping and maintenance is key. As a general rule, UK express trusts and certain types of non-UK express trusts liable to UK taxation, or with interests in UK land, are required to keep detailed records on those trusts.

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2.6. Pandemic related developments

Administration

HMCTS experienced severe delays during the pandemic. Practitioners will recall that correspondence to obtain financial information from banks and authorities took significantly longer. All HMRC officers, including those answering the IHT queries helpline started working from home which created further delays. 

In recognition of social distancing regulations and avoiding unnecessary contact, HMRC now permit IHT accounts to be signed electronically. This has continued since pandemic restrictions were lifted. 

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3 . Estate and trust litigation and controversy

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3.1. National legislative and regulatory developments

The area of trust and estate litigation is not one subject to significant legislative change, whether nationally (affecting the United Kingdom) or locally by jurisdiction.

As touched on above, one statute of note however is the Wills Act 1837 (Electronic Communications) Amendment (Coronavirus) Order 2020. This varied the execution requirements for a will, in view of the COVID-19 pandemic, to permit the remote witnessing of wills as covered earlier in the chapter. From a litigation perspective we have not seen reported cases, but have concern about undue influence as noted below.

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3.2. Local legislative and regulatory developments

There have been no legislative and regulatory developments.

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3.3. National case law developments

Such is the volume of case law developments in the past 12-18 months that it is helpful to consider some of the themes arising from the cases.

Capacity and vulnerability both continue to be areas of significant litigation. The decision in Clitheroe v. Bond [2021] EWHC 1102 (Ch) confirmed that the correct test for establishing testamentary capacity remained the case of Banks v. Goodfellow, not the test set out in the Mental Capacity Act 2005, a matter which has been considered on a number of occasions in recent years. The Court also considered how to determine whether someone is suffering from a delusion (applying the fourth limb of Banks v. Goodfellow) and that a false belief needs to be irrational and fixed in nature. 

Subsequently in Hughes v. Pritchard [2022] EWCA Civ 386 the Court of Appeal overturned the trial judge’s decision that a testator lacked testamentary capacity. In this case, the evidence of the solicitor who drafted the will (and followed the ‘golden rule’), a medical professional, and a retrospective expert report had supported a finding of capacity.

In January 2021 the Court considered capacity to litigate (applying the test in Masterman-Lister v. Brutton) in the case of Ruhan v. Ruhan [2021] EWFC 6 and confirmed that capacity to litigate could not depend on whether the party received no legal advice or the quality of that advice. If a party could make decisions with the benefit of advice, they had capacity whether or not they had the benefit of that advice. 

Closely connected to the question of capacity, 2021 and 2022 saw a number of will dispute cases alleging want of knowledge and approval. In Skillett v. Skillett [2022] EWHC 233 (Ch), DJ Mott noted at para 71 that “The lack of mathematical equality at the time of death does nothing to undermine the rationality of the provisions which [the Testator] was instructed to incorporate at the time of making the Will.” However in Reeves v. Drew [2022] EWHC 153 (Ch) in January 2022, it was found that the Testator did not know and approve the contents of his will which dealt with his estate worth over £100m, but that he had not been unduly influenced by his daughter. In the same month, similar allegations of undue influence (in this case fraudulent calumny) ran alongside a want of knowledge and approval claim in St Clair v. Farrel [2022] EWHC 40 (Ch). The claimant daughter of the testator failed on all grounds.

Claims for reasonable provision for a deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 included interesting analysis of the overlap with the Family courts. In Tucker v. Purle [2021] EWHC 3485 (Ch) the Court found that a financial remedy order made in 2013 was insufficient to meet the needs of the deceased’s 15 year old daughter up to finishing university and consequently increased her share of the estate. Sismey v. Salandron [PT-2020-BHM-000090] was the first case to consider s11 of the 1975 Act (contracts to leave property by will) and considered the enforceability of a divorce agreement to leave a property to the deceased’s son, which the deceased’s wife was seeking as part of a claim for reasonable financial provision. The son was successful in his claim.

In relation to trust litigation, many of the key decisions continue to be offshore, although their impact is of importance nonetheless for English practitioners. The two cases of In the Matter of the X Trusts [2021] SC (Bda) 72 Civ (Bermuda) and the subsequent Piedmont Trust [2021] 248 (Jersey) on the role of Protectors — whether wide or narrow, a watchdog or decision maker and their interaction with the trustees is of great interest to English advisors. 

Similarly the Privy Council decision Webb v. Webb [2020] UKPC (Cook Islands), on reserved powers and the validity of a trust in the context of matrimonial assets, provided guidance on assessing trust validity and the equitable approach the Court might take when considering the ability of divorcing spouses or creditors to access trust assets. 

Blessing applications (for example, Public Trustee v. Cooper) continue to come before the Court and in one recent case — Brown v. New Quadrant Trust [2021] EWHC 1731 — the Court ‘blessed’ a trustee’s decision to dispose of a shareholding in a company in relation to which a principal beneficiary had sought an injunction to prevent the sale.

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3.4. Local case law developments

There have been no local case law developments.

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3.5. Practice trends

We have noted above some of the key themes we have seen in the reported decisions. 

We have seen the issue of protection for vulnerable parties and witnesses also become a key area of concern. In April 2021, new Practice Direction 1A to the Civil Procedure Rules came into force which recognised (as the Family Courts have for some time) that the vulnerability of a party or witness could impede participation and diminish quality of evidence, and that directions may need to be made to make suitable adjustments.

The question of costs continues to be an area of considerable judicial commentary and reference to alternative means by which to settle disputes (mediation, ENE, FDR), a regular theme. Further, in Hirachand v. Hirachand [2021] EWCA Civ 1498, the successful adult child claimant bringing a claim under the 1975 Act was able to recover, as part of her award, a contribution towards a success fee under a Conditional Fee Agreement (CFA). Whilst specific to the facts of the case, we watch with interest how this may be applied in future 1975 Act cases. 

We anticipate that the coming months or years will see an increase in litigation stemming from pandemic related changes, whether allegations of undue influence in relation to remote witnessed wills or challenges to trustee decision making at a time of uncertainty. Digital assets (including cryptocurrencies, NFTs etc.) will undoubtedly be potential source of controversy.

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3.6. Pandemic related developments

In terms of case law related specifically to the pandemic, there have been a number of reported decisions by the Court of Protection on the question of capacity to consent to the COVID-19 vaccine or booster. These cases involved the Court considering the best interests test set out in the Mental Capacity Act 2005 and balancing this against the wishes of one of more family members or, in some cases, the incapacitated individual themselves. In Re E (E v. Hammersmith and Fulham LBC) [2021] EWCOP 7 the Court found it to be in the best interests of the patient to have the vaccine, however in SS (by her accredited Legal Representative) v. London Borough of Richmond Upon Thames [2021] EWCOP 31 the Court found that the patient’s autonomy should be respected.

One development which will remain for the foreseeable future is that of remote hearings (and electronic bundles). The pandemic led to a transition to remote hearings, requiring both legal representatives and clients to adopt a radically new way of progressing hearings of a case and to ensure the justice system continued to operate. There were existing plans to digitise the Courts, but the pandemic expedited the process. This had some advantages in terms of time and cost but there was concern about the impact on vulnerable parties in particular, who may be best served by in person hearings (see Report by HM Courts and Tribunals Service (HMCTS) at www.gov.uk/government/publications/hmcts-remote-hearing-evaluation#history). The mode of hearings ultimately remains a matter of judicial discretion. In March 2022 a new Video Hearings Platform was introduced into some Business and Property Courts designed for use in hybrid and remote hearings.

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4 . Frequently asked questions

What is the difference between ‘residence’ and ‘domicile’ under the law of England and Wales?

Generally speaking, an individual is domiciled in the jurisdiction with which they are most closely connected (which may be different from the country in which they are resident for the time being). 

Unlike in the case of residence, an individual must, under common law, at all times be domiciled somewhere, but can only be domiciled in one jurisdiction at any one time.

The UK’s residence rules are outlined in various statutory rules and it is possible to determine in any given year if a person is UK tax resident. This, combined with domicile, determines an individual’s exposure to income tax, CGT and IHT. Domicile is also crucial for many non-tax purposes, which include aspects of succession, family law, and civil jurisdiction.

 

EXPERT ANALYSIS

Chapters

Bermuda

Craig MacIntyre
Grace Quinn

Brazil

Adriane Pacheco
Beatriz Martinez
Humberto Sanches
Juliana Cavalcanti

Canada

Marilyn Piccini Roy

France

Line-Alexa Glotin

Germany

Dr. Andreas Richter
Dr. Katharina Hemmen

Guernsey

Matt Guthrie

Israel

Lyat Eyal

Italy

Camilla Culiersi
Gian Gualberto Morgigni
Giovanni Cristofaro
Raul-Angelo Papotti

Japan

Tomoko Nakada

Jersey

Sarajane Kempster

Liechtenstein

Johannes Gasser

Luxembourg

Bilal Ajabli
Ellen Brullard
Eric Fort
Guy Harles

Scotland

Mark McKeown
Paul Macaulay

Spain

Florentino Carreño

Switzerland

Ruth Bloch-Riemer
Tina Wüstemann

United States

Jonathan Byer
Joshua S. Rubenstein

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Browne Jacobson boosts turnover by 12% to record high

1d

Cadwalader duo join Greenberg Traurig in London

1d

McDermott refreshes German leadership

3d

Linklaters real estate team departs for Swedish independent

4d