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Wills, probate and administration

Court of Protection – advance decisions

An advance decision is an important tool and should be discussed with as much regularity as wills and LPAs for anyone involved in estate planning. The author of this useful article questions whether the heartache surrounding a recent CoP case would have been avoided had the patient completed an advance decision using the mechanism available under ss24-26 MCA.

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Procedure – COP rules

Amendments to the Court of Protection Rules 2007 are now in force. Rules 5 and 6 of the Court of Protection (Amendment) Rules 2017 allow for the CoP to make civil restraint orders. Rule 5 now defines a ‘civil restraint order’ as:

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Procedure – gifts of assets

Law Society guidance on Making gifts of assets has been issued. The Law Society highlights the issue in circumstances where clients may ask practitioners for advice about transferring property or investments to their next of kin, family members or friends, before their death, as a means of planning for their future care. The Law Society warns that a solicitor could be implicated if found to have aided a client’s deliberate deprivation of assets.

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Court of Protection – health and social care services

What is the role of the CoP where there is a dispute between providers or funders of health or social care services for someone lacking capacity to make decisions for themselves and family members about what should be provided for them?

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Wills – dependency claim

The Court of Appeal’s order in the high-profile case of Ilott gave little weight to the testator’s very clear wishes and the long period of estrangement between her and her daughter, the claimant in the case.

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Wills – disclosure to attorneys and deputies

Law Society guidance on Access and disclosure of an incapacitated person’s will has been published in the form of a practice note and is relevant to all solicitors who store wills.

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Wills – dependency claim

A widow successfully appealed an award under the I(PFD)A which was made in favour of the testator’ long-term partner (P). The High Court ordered that a life interest in the testator’s half share of property was to vest in the widow (W).

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Contentious probate – update

In this article, the author summarises the latest and most notable of contentious probate and trust cases. In addition to the Ilott v Mitson case, the author highlights a case where the High Court affirms the use of single-stage test for determining knowledge and approval of a will, but cross-checks the conclusions reached with reference to the two-stage test (in either case, the answer should be the same).

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Wills – professional executors

The Law Society has issued useful guidance on the appointment of professional executors. The practice note, Appointment of a professional executor, is aimed at solicitors and law firms who provide wills and probate services, and for solicitors and firms retained by, or who have an economic relationship with, a third party selling its own executor services.

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Trusts-probate

A claim by the trustees of a religious charity for permanent injunctions against a former trustee was successful. The former trustee (the defendant, D) had been accused of misappropriating charity funds and passing off his activities as those of the charity.

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