Category: News Stories

Discerning where an individual is domiciled for tax purposes can involve delving far back into his or her family history. In a case on point, a tax tribunal’s inquiries began with the birth of a wealthy businessman’s father in Austria at the end of the First World War and his subsequent flight from Nazi oppression to England.

In challenging tax assessments in respect of a four-year period, the businessman asserted that he was domiciled in England for none of those years. In determining his appeal, the First-tier Tribunal (FTT) was required to consider not only his own domicile but that of his parents.

His father’s domicile of origin was in Austria, where he was born in 1918. He came to England in 1938, having escaped the Nazi persecution of Jews, and served in the British Army. His future wife was born in Ireland and, after they met and married in London in 1954, they established a business and had three children together.

It was the businessman’s case that his father was domiciled in Austria throughout his life – he died suddenly, aged 50, in 1968 – and never acquired a domicile of choice in England. As his father’s dependant, he was himself born with an Austrian domicile and that continued to be the position after he reached adulthood. His mother, too, had never chosen to abandon her domicile of origin, Ireland.

Ruling on the matter, the FTT found that his father turned his back on Austria when he fled to England, renouncing any connection with the land of his birth. He became deeply settled in London and, having made up his mind to live permanently and indefinitely in England, he acquired a domicile of choice here. Although his mother may have expressed an intention to return to Ireland, any such plan was vague in nature and she too had acquired a domicile of choice in England.

The businessman described himself as a global person who owned property abroad and spent most of his time outside England. In dismissing his appeal, however, the FTT noted that he was born and brought up, and had established a thriving business, in this country. He had never had any ties or attachments to Austria or Ireland and there was compelling evidence that he had, at the relevant time, intended to make his permanent home in England and to end his days here.

To make a valid will, you need a certain level of mental capacity. However, as a High Court ruling showed, a flawless memory is not required and those suffering from mild cognitive impairment may not be disqualified from expressing their wishes.

The case concerned a woman who was suffering from advanced vascular dementia when she died at the age of 90. She had, six years previously, made a will by which she left her entire estate to her son and only child.

He died before her, however, so that, under the terms of the will, her estate passed to one of her nephews and his wife. The will was the source of much antipathy within the family and one of the woman’s nieces mounted a challenge to its validity on the basis that she lacked the mental capacity required to make it.

Ruling on the matter, the Court noted that the capacity to make a valid will depends on the potential to understand and is not to be equated with a test of memory. The legal test for capacity is not pitched so high as to prevent the elderly and others with imperfect memories from making a will.

The first indication that the woman was having mental health difficulties occurred about four months before she made the will. She was visited at home by a mental health nurse who noted her sadness that so many old friends had passed away. Such a lament, the Court noted, was not unusual for elderly people.

In his report, the nurse described her as a pleasant and sociable lady who stated that she had not left her home for over a year. Her short-term memory was impaired, she was disorientated as to time and she had occasional episodes of confusion. Overall, the nurse’s opinion was that she was suffering from mild cognitive impairment.

Upholding the will’s validity, the Court noted that it was rational on its face. Drafted by an experienced lawyer, its terms were simple and readily understandable. In the light of medical records, the likelihood was that she was still in the early stages of mental decline when she signed the document. She recollected the extent of her property, which largely consisted of her home, and was able to understand the nature of the will and its effect.

If you feel that you have been unjustly denied an inheritance, you should get in touch with a solicitor straight away. The dangers of delay were made plain by a case in which foot-dragging led to the sacrifice of a possible six-figure legacy.

The case concerned a man who died suddenly at the age of 50. His widow, whom he married just five months previously, obtained letters of administration on the basis of her sworn deposition that he was domiciled in England and Wales and died without making a will. The bulk of his estate, which was valued at almost £500,000, was thereafter distributed to her.

A decade later, the man’s brother launched proceedings with a view to revoking the letters of administration. He was the sole beneficiary of a will that the man had made prior to his marriage. His ultimate objective was to recover the estate from the widow so that it could be distributed to him in accordance with the will.

He contended that the man was in fact domiciled in Scotland when he both married and died and that his widow had knowingly made a false deposition in order to obtain the letters of administration. He pointed out that, unlike in England and Wales, under Scottish law a will is not revoked by a subsequent marriage.

Ruling on the case, the High Court noted that the man had drafted a new will around the time of his marriage by which he intended to leave most of his estate to his wife. However, he died before he could sign the document. The Court found that, following his death, his brother initially told his widow that he wanted nothing from the estate and that she should have all of it. Only subsequently did he change his mind.

The widow, the Court ruled, was guilty of no impropriety, either in her making of the deposition or in administering the estate. She was open and transparent in her dealings and acted on professional advice that the will was invalid and that her husband had, throughout his life, probably been domiciled in England and Wales, where he was born.

In dismissing the brother’s claim, the Court found that his delay in prosecuting the matter was both gross and inexcusable. The estate had long ago been distributed and the widow had sought to rebuild her life around her inheritance. She would suffer significant financial prejudice, and be forced to relive painful memories, were the brother permitted to proceed with his case. It would be unconscionable, at this late stage, for him to recover from the widow any of the estate’s assets.

If a neighbour has been granted planning permission for a development to which you object, you may feel that there is little or nothing you can do about it. As a tribunal ruling showed, however, you may well be wrong about that.

The case concerned a proposal to demolish four suburban houses and replace them with a block of 33 flats, standing up to five storeys high. Given the acute need for more new homes, planning permission was granted for the project.

Standing in the developer’s way, however, were restrictive covenants enshrined in the title deeds of three of the houses. One of them, dated 1963, forbade construction of more than one detached house on one of the plots. Another, dated 1993, required that two of the properties only be occupied by single households.

The developer applied to the Upper Tribunal (UT) under the Law of Property Act 1925 to modify the covenants so as to permit implementation of the planning permission. However, fierce objections were raised by neighbouring property owners who it was accepted enjoyed the benefit of the covenants.

The company argued that any diminution in the value of the objectors’ properties arising from the development would be modest and offered them a total of about £33,000 in compensation. The objectors, however, argued that the construction of the block would devalue their homes by 10-15 per cent, or a total of more than £380,000.

Ruling on the matter, the UT noted that, planning permission having been granted, it was difficult not to regard the development as a reasonable use of the relevant land. It was not in dispute that the covenants impeded that use. The crucial question was whether the covenants continued to secure practical benefits of substantial value or advantage to the objectors.

In ruling that it had no discretion to modify the covenants, the UT found that one objector’s property would be significantly overlooked by the proposed block. The very large and overbearing building would transform the outlook from that property, dominating views of the western sky. It would also be visible from the second-floor office and garden of another objector’s home.

You might think that the making of a care order implies blame on the part of a child’s parents. However, as a family judge’s ruling in the case of a tragedy-struck 14-year-old girl made plain, you would certainly be wrong about that.

The girl was brought up by her mother alone after her father died when she was very young. Her mother subsequently suffered a catastrophic brain haemorrhage and was thereafter herself in need of round-the-clock care. She could not look after her daughter or exercise her parental responsibility for her.

The girl was placed in foster care, where all agreed she should remain until reaching adulthood. However, an issue arose as to whether she could lawfully be made the subject of a formal care order in circumstances where there was no criticism of the care her mother gave her prior to losing her parenting capacity.

Ruling on the point, the judge found that the making of a care order does not require evidence of a history of past risk or parenting failure. He noted that parents may be unable to provide adequate care for their children for a variety of reasons that reflect no blame on their part. Proof of blameworthiness was not necessary before a care order, which all agreed would best serve the girl’s welfare, could be made.

The judge was satisfied that his decision would not open the floodgates so as to render any parent who loses capacity vulnerable to state intervention. The girl had suffered a torrid, difficult and traumatic time and the judge emphasised that his paramount concern was to ensure her future welfare.

The threshold for the making of a care order was crossed in that, were no such order made, the girl would be at risk of significant future harm. The order would enable a local authority to share parental responsibility for her so as to ensure that she was appropriately looked after.

Adults who lack the capacity to make important decisions for themselves are entitled to their autonomy and should never be equated to children. The Court of Appeal trenchantly made that point in directing that a man with a severe learning disability should be vaccinated against COVID-19.

The man, aged in his 20s, also suffered from congenital heart defects and his mother and primary carer was deeply anxious that vaccination against the virus would place him at particular risk. A judge nevertheless found that vaccination would be in his best interests and authorised an NHS body to perform the procedure.

Ruling on the mother’s challenge to that ruling, the Court did not doubt the sincerity and strength of her beliefs, which were worthy of respect. She had provided her son with the best possible care throughout his life and it was thanks to her that delightful and engaging aspects of his personality had blossomed and grown.

In dismissing her appeal, however, the Court found that her principled opposition to his vaccination could not be reconciled with national medical guidance or the expert opinion of a consultant cardiologist that it was the virus itself, rather than vaccination against it, that would place him at heightened risk.

The Court noted that an adult who lacks capacity is not and never should be treated as a child. Such a paternalistic approach had long since been consigned to history and recognised for what it is – a subversion of adult autonomy. The Court was concerned to protect the man’s freedom, not that of his mother.

The views of parents, friends and others close to a person who lacks capacity are, the Court acknowledged, invariably helpful when considering non-medical issues in such cases. However, their relevance is to illuminate the broader canvas of such a person’s circumstances, not to provide a platform for their own opposition to a course of action which is, objectively, in the person’s best interests.

The Court noted that, whilst the man’s ability to exercise his autonomy may be circumscribed, it was not extinguished. He had a quality of life which was both dignified and meaningful and his lack of capacity did not render his own wishes and feelings irrelevant. Although unable to express himself verbally, he was able to express enjoyment or displeasure, acquiescence or resistance.

The preponderance of evidence indicated that he was not anxious about receiving injections or having blood taken. The only force likely to be required in vaccinating him was to hold his arm to keep it still. Although he could not absorb the medical issues involved in the case, he was perfectly able to decide for himself whether to cooperate or reject vaccination.

Engaging a professional to draft your will and give advice has many advantages that may not be apparent at the time. In a case on point, a lawyer’s prudence in arranging a medical assessment of an elderly client proved decisive in the Court of Appeal’s decision to uphold the validity of his final will.

Following the death of an elderly farmer and businessman, his estate was valued at almost £2 million. By his first two wills, he left business assets to two of his children and farmland to his third. After the third child died suddenly, however, he instructed a solicitor to draft a new will which made significantly different bequests.

He had been experiencing problems with his memory for some time and the death of his child had a devastating impact on him. The solicitor was concerned to ensure that he had the mental capacity required to make a valid will and, with that in mind, she asked the man’s GP to carry out an assessment.

After doing so, the GP noted that he was fully orientated and gave no appearance of being confused or distressed. He was able to go through the will, bit by bit, with very little prompting. After an inheritance dispute developed within the family, however, a judge found that the will was invalid for want of testamentary capacity.

Reversing that decision, the Court noted that the case raised important issues about the proper weight to be attached to the evidence of a drafting solicitor and a medical practitioner’s assessment of capacity. The man was astute enough to realise that it might be sensible to change his will following his child’s death and the document he signed was rational on its face.

The solicitor had prudently enlisted the GP’s assistance and was entitled to, and did, rely on his medical assessment. Neither of them was required to question the man as to his reasons for changing his will. The Court concluded that, had proper weight been given to their evidence, it would not have been open to the judge to find that the will was invalid.