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HMRC internal manual

Capital Gains Manual

Death and Personal Representatives: General introduction and background: Varying devolution of estates by court order

Sometimes people are aggrieved by the way an estate is to devolve. For example a parent may have left a will disinheriting one or more of his or her children or an elderly patient in a nursing home may have left all the estate to the owner of the nursing home and none to his or her family.

Even in intestacies problems can arise. For example, a man and wife executed wills leaving their estate to each other or, if the other was already dead, to their children. The wife died and her assets passed to her husband. This man then remarried. The remarriage automatically cancelled his will. On his death the rules of intestacy applied to pass the majority of his assets to his second wife, including those assets that came originally from his first wife. His children felt aggrieved.

The aggrieved persons may decide to challenge the devolution of the estate. They may press the legatee who is due to receive the estate to enter into a deed of variation. If this approach is not successful they may commence court proceedings. If they are close family members or dependants of the deceased they may bring proceedings under the Inheritance (Provision for Family and Dependants) Act 1975. Other persons may use other methods of proceeding, such as challenging a will on the grounds that undue influence was exerted over the deceased by the legatee when the will was drawn up.

The Court proceedings may progress as far as a full hearing with an order made by the Court either confirming the original devolution or ordering a variation. In other cases the parties may negotiate a compromise between themselves before the Court hearing. The Court may then simply order that proceedings be stayed or dismissed on the terms of the compromise which is scheduled to the Court Order. Such orders are usually described as being in Tomlin Order form. Once an appropriate Court Order has been made the personal representatives are bound to distribute the assets still in their hands in accordance with that Order.