Rights of residence: has someone taken up the right of occupation?
Has someone actually taken up the right of occupation in whole or part? If not, a disclaimer may be possible.
This point came up in the case of Cook (Executors of Watkins)  STC (SCD) 318.
In this case Mrs Watkins by her will left the matrimonial home, a flat with contents, to her husband: ‘(so that he) may live in it and use it as his principal place of residence, keeping it insured and paying outgoings etc.’
Mrs Watkins died on 12 December 1999, when Mr Watkins was 89 years old. Owing to his age, his ill-health, an accident, and the efforts of family members to care for him, Mr Watkins did not live in the property as from his wife’s death until his own death on 10 February 2000. He had, however, visited the flat and taken away some belongings. On one visit he had a bath.
If he had a vested interest in possession via this right of residence, the flat would be spouse or civil partner exempt on the death of Mrs Watkins, and taxable on Mr Watkins death.
HMRC determined that, on these facts, he did not have an interest in possession: his interest under his wife’s will had been disclaimed by conduct and IHTA84/S93 applied.
The Special Commissioner reviewed the evidence and concluded: ‘the evidence is finely balanced. Some of this evidence points in both directions. I am left with the fact that he did nothing to show clearly that he never intended to occupy the property. The evidence in favour of disclaimer by conduct is not strong enough to displace the presumption that the legacy (being advantageous) would be accepted.’
Decision: disclaimer by conduct did not take place in respect of this flat (but it did for another, lower, flat).