I have placed this article back on the front page of our blog as a result of the article written by Joan McAlpine MSP in the Daily Record on Free Personal and Nursing Care.  This is the first time in many months that I have seen the Attendance Allowance issue mentioned.     

My article on the UK Government’s decision to withhold Attendance Allowance funding when the Scottish Parliament introduced its policy of Free Personal and Nursing Care can be found can be found here.  This article was written on 24 August 2011. 

Joan McAlpine’s Daily Record article can be found here.   

When someone dies, there can often be a number of government departments and agencies to notify.  For example, a passport or driving licence may need to be cancelled, or benefits stopped.  The “Tell Us Once” service is designed to make things simpler for you, by helping you give this information to government only once.

Once you have registered the death, the registrar will tell you about your options for using Tell Us Once.  These are:

• in person, by making an appointment with your local authority bereavement adviser
• by phone – the registrar will give you the phone number
• online

After you have used the Tell Us Once service, the relevant government departments and services will be contacted on your behalf.  Depending on your circumstances these may include:

• Adult Services (social care for adults)
• Children’s Services
• Council Housing
• Council Tax Office
• Disability and Carers Service
• DVLA (driving licence agency)
• HM Revenue and Customs (for Child Benefit, Tax Credits and personal taxation)
• Passport Service
• Pension Service

The information you give to the adviser is only passed on to the government departments that need to know.

More on this can be found here.

This is from the website of OPG Scotland.

“The Public Guardian is aware of the significant problems experienced by attorneys, withdrawers and guardians when dealing with banking institutions and other fund holders. There is a regular programme of awareness raising and training with fund holders to try and reduce these difficulties but this makes little impact at the present time. The Equality and Human Rights Commission are keen to hear from individual attorneys, withdrawers or guardians, who encounter such difficulties and with permission may be able to raise a legal challenge against a fund holder on the grounds that they are treating incapable adults less fairly than a capable person. The Commission can be contacted:

• By e-mail scotlandhelpline@equalityhumanrights.com or
• By telephone on 0845 604 5510 or
• In writing to Equality and Human Rights Commission Helpline Scotland
  Freepost RSAB-YJEJ-EXUJ
  Equality and Human Rights Commission
  PO Box 26961
  Glasgow, G2 9DU”

More on this can be found here.

A reminder to charities and Community Amateur Sports Clubs (CASC) from HMRC to use form R68(i) to claim tax repayments on Gift Aid donations.  More information on this from HMRC can be found here.

Further update from Office of the Public (Scotland) on processing times for powers of attorney.  The update can be found here.

Hanson v HMRC [2012] UKFTT 95 (TC)

Given the amount that has been written on this decision over the last few weeks I thought I would put up my earlier blog on this again.  My earlier blog can be found here.

We still do not know if HMRC are to appeal this decision.

The First-tier Tax Tribunal held that agricultural property relief can be obtained on a farmhouse even when ownership of the farmhouse and the farm land were held separately.

The report from the First-tier Tax Tribunal can be found here.  There is also an excellent report on this case in the latest edition of the Solicitors Journal.

This is a Note by Sheriff A G McCulloch in the matter of a petition for the appointment as executor dative by Dennis Murray.

Mr Murray is one of four children of the deceased.  The widow of the deceased was made the subject of a guardianship order.  Mr Murray was appointed as her guardian.

As the widow’s prior rights would exhaust the whole estate of the deceased, the normal procedure would have been for the widow or her guardian to be appointed as executor dative.   However, the guardianship order in this case unusually did not contain a power for the guardian to make an application for appointment as executor dative.

The Sheriff explained in his Note that the problem here was the current commissary practice.   The current practice is to treat the surviving spouse whose prior rights exhaust the whole intestate estate as the sole person with the right to be appointed executor.   The Sheriff noted that this appeared “to be a misunderstanding, or misreading, of the provisions of section 9(4) [of the Succession (Scotland) Act.]“

The Sheriff’s Note which can be found here outlines the relevant part of  section 9(4).

The Sheriff held that “… those other than the surviving spouse may seek in these circumstances to be decerned executor dative.”

This case concerns a matter that had not previously come before the Scottish courts.

The facts of this case were not in dispute and were set out in a joint minute agreed by the parties.   Miss Isabella Gordon granted a Power of Attorney in 1996 in favour of her solicitor.  This included the power to sell any part of her estate.  In 1997 she executed a Will in which she bequeathed her home in Stonehaven to John Turner.  In 2001 Miss Gordon became incapable of managing her own affairs and moved into a nursing home.  Her Attorney sold her home later on that year.   Miss Gordon died in 2008.

The question for Lord Tyre was whether the legacy of the house was “adeemed” or was it “converted”, so that the beneficiary is entitled to a sum equivalent to the proceeds of sale of the house.

“Where the subject matter of a bequest (whether heritable or moveable) has been disposed of by the testator so that it no longer forms part of his or her estate at the date of death, the bequest or legacy is said to have been adeemed and therefore cannot take effect.”

Lord Tyre also made the following point: “In contrast to the doctrine of conversation, the intention of the testator is not regarded as relevant to ademption.”

The crucial point here appeared to be that the parties agreed the following:  “The sale of the house by [the attorney] was a prudent act of administration, having regard to the disadvantage in leaving the house empty with attendant maintenance costs.  It was not a necessary act, not having been an act which [Miss Gordon] as principal, had she been sui juris ["full legal capacity"], would have been constrained to effect, there being sufficient other funds available to meet the costs of [Miss Gordon's] care.”

Lord Tyre held that as the sale of the house by the Attorney was a prudent act of administration rather than a necessary act to fund Miss Gordon’s care, the legacy was not adeemed by the sale.  John Turner was therefore “entitled to receive a cash equivalent to the proceeds of sale of the house.”  In addition he is entitled “to receive a sum representing the fruits of these proceeds during the period since the date of receipt of the sale proceeds.”

One last point on expenses.  Lord Tyre agreed that both parties were entitled to their expenses from the executry estate.

Thanks to Gillian Campbell of Biggart Baillie and Nicola Smith of Cairn Legal for tweeting about this case.

The case report can be found here.

The England & Wales Court of Appeal has ruled that a baronet’s failure to adopt the ancestral family name within a certain period of time did not disqualify him from inheriting the family castle.

The background to this case is Corby Castle in north Cumbria.   Sir John Howard-Lawson inherited Corby Castle in 1962 and sold it for £2.5m in 1994.  Corby Castle had been the family seat for around four hundred years.

His own son Philip Howard later demanded around £1.5m from the sale proceeds.  Philip’s argument was that his father had not complied with the archaic terms of a will executed by his great-grandfather Philip John Canning Howard.  In particular he argued that his father did not change his surname to “Howard” and adopt the family coat of arms within the deadline referred to in the will.  A deadline of one year had been included in the will.  Such “name and arms clauses” were traditionally used by the landed classes to keep the family name and arms linked to the estate.

The Court of Appeal held that as his father had at least applied to use the family surname and coat of arms before the deadline, he had complied sufficiently with the will’s terms.   The College of Arms had not granted his father these rights until after the one year deadline.   Interestingly a court had decided in 1961 that Sir John’s father, William, had not met the deadline imposed by Philip John Canning Howard.

Philip Howard lost his case in the England and Wales High Court and now the appeal too.  It is reported that he intends to take this matter to the Supreme Court.

The case report can be found here.

A report from the STEP journal can also be found here.

Statement from the Office of the Public Guardian Scotland

“It has come to our attention that there are companies advertising to assist with, in certain circumstances, the claiming back of nursing or care home fees which have been paid from 2004 onwards.

We would like to advise that this applies in England and not Scotland.”

On the same “News” page you will see the welcome progress that is being made regarding the processing times of Powers of Attorney.

More on this can be found here.