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HMRC internal manual

Capital Gains Manual

Death and Personal Representatives: Period of administration and ascertainment of residue: Personal representatives: sales: legatee only holds a chose in action

Until assets have been specifically vested or residue has been ascertained no legatee can be certain that he or she will receive an interest in any specific asset. The personal representatives may have to sell that asset in order to raise funds to pay liabilities. Therefore all that the legatee holds during the period of administration is a chose in action, being a right to have the estate properly administered.

This is a principle which has been well established by Court decisions in a number of branches of law. In the context of Income Tax the principle was established by the House of Lords judgement in Rex v The Commissioners for the Special Purposes of the Income Tax Acts (ex parte Doctor Barnardo’s Homes National Incorporated Association) 7TC646. The test was subsequently set out by the Privy Council in the case of Commissioners of Stamp Duty v Livingstone [1965] AC694, 711 where Viscount Radcliffe said

`When the personal estate of a testator has been fully administered by his executors and the net residue ascertained, the residuary legatee is entitled to have the residue as so ascertained with any accrued income, transferred and paid to him; but until that time he has no property in any specific investment forming part of the estate or in the income from any such investment and both corpus and income are the property of the executors and are applicable by them as a fixed fund for the purposes of administration.’

That the same principles apply for Capital Gains Tax purposes was decided in the cases of Cochrane’s Executors v CIR 49TC299 and Prest v Bettinson (as trustee of Gladys Dodd deceased residuary trust) 53TC437.