By Lesley King, College of Law, London


Inheritance tax

Readers will already be aware of the Chancellor's announcement on 9 October that the nil-rate band is transferable between spouses and civil partners. Legislation will be introduced in the 2008 Finance Bill but the change is immediately effective.



Where one spouse or civil partner dies without making full use of his or her nil-rate band, the nil-rate band of the survivor will be increased by adding the unused proportion of the nil-rate band of the first to die. Budget notices and draft legislation are available on the HM Revenue & Customs (HMRC) website. The important features of the changes are as follows:

l The surviving spouse or civil partner must die on or after

9 October 2007;

l It does not matter when the first spouse or civil partner died;

l The relief is claimed by the personal representatives of the surviving spouse;

l The claim must be made within two years of the death of the survivor or, if later, three months from the date that the personal representatives first act (the 'permitted period'). HMRC has power to accept a late claim;

l Should a claim not be made by the personal representatives within the permitted period, a claim can be made by any person who could be liable for inheritance tax on the death of the surviving spouse or civil partner;

l There are provisions to ensure that a surviving spouse who has been married more than once cannot inherit more than the limit of the current nil-rate band; and

l There are provisions dealing with the interaction of the transfer of the nil-rate band and the calculation of deferred inheritance tax triggered on woodland and heritage property.



The claim will be for the proportion of the nil-rate band unused at the first death calculated by reference to the value of the nil-rate band in force at the death of the survivor. For example, suppose a husband died in tax year 2006/07 when the nil-rate band was £285,000 and had half of it unused, while his wife died some years later when the nil-rate band had increased to £400,000. In addition to the wife's nil-rate band, her personal representatives would be able to claim an additional £200,000 (half of the nil-rate band in force at her death).



The change is to be welcomed because it will allow many couples to achieve what they have long wanted: to allow the surviving spouse ownership of the couple's combined assets without wasting the nil-rate band of the first to die.



Some spouses will have reservations about passing all the assets to the survivor (particularly, for example, where there are children from a previous marriage). In such cases, clients may choose to have a nil-rate band discretionary trust with spouse and issue as beneficiaries or may leave the spouse a terminable life interest in some or all of the estate.



Beneficial ownership

The House of Lords held in Stack v Dowden [2007] UKHL 17 that a conveyance into joint names, in the domestic consumer context, establishes a prima facie case of joint and equal beneficial interests unless and until the contrary is proved, even if the purchase price is provided unequally. Similarly, where property is conveyed into one name, the starting point is that the person named has the sole legal and equitable interest.



The onus is on the person seeking to show that the beneficial ownership is different from the legal ownership. So, in joint ownership cases, it is on the joint owner who claims to have other than a joint beneficial interest and in sole ownership cases it is on the non-owner to show that he has any interest at all.



In Adekunle v Ritchie (see [2007] Gazette, 13 September, 36), John Behrens QC had to consider whether the House of Lords approach only applied in domestic situations where there was some sexual relationship between the parties. He held in Leeds County Court that the Stack v Dowden approach was not limited to cohabiting couples living together in a platonic or sexual relationship. It applied in a case such as the one under consideration, where a property had been purchased by a mother and son.



Enforcing a promise

Soulsbury v Soulsbury [2007] EWCA Civ 938 is an interesting case on the enforceability against an estate of a promise to pay a lump sum to a former wife.



The deceased had been ordered to make periodical payments to the wife and did so for many years. He asked his former wife to forego the payments in return for a promise to leave her £100,000 in his will. She eventually agreed. In 1991 he made the will, leaving her the legacy and the residue to their children. In 2000, he became ill with leukaemia and in 2002, on the day he died in hospital, he married his long-standing cohabitee. The marriage revoked his will. The second wife refused to pay the £100,000 and argued that it was irrecoverable.



Her argument was based on a dictum of Lord Justice Thorpe in Xydhias v Xydhias [1991] FLR 683 that ordinary contractual principles do not apply to an agreement for the compromise of a claim for ancillary relief; such an agreement is unenforceable unless converted into a court order because otherwise it is an attempt to oust the jurisdiction of the court and void under Hyman v Hyman [1929] AC 601.



The Court of Appeal held that the dictum relied on was stated too widely. In the present case, there had not been a compromise of an application for ancillary relief because the wife was not bartering away her right to maintenance nor her right to go back to court. She could have done so at any time. The agreement was a perfectly ordinary contract and as such was enforceable.