Death and Personal Representatives: Variation of the devolution of an estate: Variations following proceedings in the courts: Variations: Inheritance (Provision for Family and Dependants) Act 1975
Where proceedings are brought under the Inheritance (Provision for Family and Dependants) Act 1975 and after a full hearing the Court makes an order under Section 2 of that Act, the terms of that order are deemed to have applied from the date of death for all purposes (Section 19(1) Inheritance (Provision for Family and Dependants) Act 1975). There are therefore no Capital Gains Tax disposals on the making of the order and TCGA92/S62(4) will apply when assets vest in the persons named in the order. This will apply however long the interval from the date of death to the making of the Court order.
Where proceedings are brought under the 1975 Act but there is no full hearing of the case and it is settled by a Tomlin Order, see CG31800, the position will depend on the precise form of the order made by the judge.
In any case involving a minor or minors the judge will review the terms of the compromise agreement to ensure it is in the interest of the minor(s). The judge may
- merely order that the parties are at liberty to carry out the terms of the compromise
- add a requirement that the parties do carry out those terms.
If the order includes a positive requirement to carry out the terms of the compromise it should be accepted as being an order within Section 2 of the 1975 Act. It should then be dealt with as in CG31810 above. However if it does not include any such positive requirement it should not be regarded as being an order under that section. Instead it should be dealt with in accordance with CG31820.
If the case does not affect the interests of any minor then, normally, the order will not include any positive requirement. It should not be accepted as being an order within Section 2 of the 1975 Act.