Many thanks for your helpful response, Tobias.
I was hoping that because trustees could realistically generate say £117,000 from a bungalow sale (immediately after bungalow placed on trust) that the value of the asset on transfer to trust could be taken to be £117,000, but obviously not: trustee has to take a realistic open market value which is indisputably £120,000 because that was what was paid immediately before transfer to trust.
I totally agree that hmrc/local councils/courts tend to be unsympathetic towards schemes deliberately designed to avoid means-testing, and quite right too. This is why I advised my friend in writing, before the event, to guard against transferring assets to trust solely to avoid means-testing because local councils may attempt to “look through” the trust. So I concur with you that it is irrelevant that no benefit was obtained from the trust because trust was clearly designed to derive benefit in certain circumstances which means that benefit was sought from the trust. The fact that those circumstances never arose, and no benefit was obtained, is not relevant. So I love your “unlikely to assist you” rather than the more deflating and uninspiring “not relevant”.
Courts will not be used I strongly suspect, especially considering my arguments are flat wrong!
However, I believe my CGT argument is still correct. If a house was transferred to trust (without registration with TRS because at the time the trust had no tax liability) and sold 15 months later for £240,000 and during these 15 months house prices rose (as shown by land registry data for relevant area) surely the value of the transfer into trust is adjusted downwards for this house price uplift to arrive at a realistic open market price when house transferred to trust. Settlor has no CGT to pay on transfer because it was her PPR. Or does this not work? Do the tax authorities, for instance, state that because house had a right to be lived in by the settlor until her death that the transfer in value was reduced? Intuitively I always think you have to compare like with like - if trustees sell a house at open market value then the trustees acquisition price for CGT purposes has to be an open market value at the date of transfer into trust. Or have I got it wrong, again? My reckoning is that it is better to be paying CGT at 28% on £1,000 or £2,000 or £3,000 than IHT at 40% on £7,000 or £8,000 or £9,000 as I am sure all appreciate. I believe that house price rises in the relevant time period will support this.
Usefully there maybe a £7,000 loan involved that will reduce values.
I agree that in Payne vs Tyler the advisor (who was nephew of the deceased Sally Elizabeth Alston) got incorrect information from other advisors who he could reasonably expect to be more knowledgeable than he on a particular point. Errrr, so what is the use in anyone seeking advice from professionals on anything if professionals are going to sometimes get things wrong which are smack in the middle of their area of expertise? Acting on incorrect advice is a totally different kind of "mistake” from exceeding a transfer threshold by “mistake”. So my analogy is incorrect.
But I don’t know what the conveyancing/acting solicitor was doing who carefully helped my friend buy a house for £120,000 and transfer it to trust knowing that a £240,000 house (that same solicitor was also acting for regards sale) was already on the same trust, settled by the same settlor. Maybe I do not know the full story - usefully my friend appears now (because of co-executor wishes) to be going down the “get another solicitor to apply for probate” route. Which is fine – it is crucial that positive relations, and health, are maintained throughout and a professional probate submission can give peace of mind in many ways. So it will end up at least 2 solicitors and 1 advisor to sort one simple trust. But probably best course of action for me to steer well clear, so I am happy.
Lastly I wish to make comments on the Payne vs Tyler case. I do not wish to be personal and am not criticizing anyone in any way. But it illustrates my position which is “Spend some time looking after yourself.” As judges have commented for decades this, unfortunately, often revolves around tax avoidance. Sad, but true. I studied the Payne vs Tyler case because I thought the tax treatment appeared wrong: of course it was not wrong; it was my misunderstanding of who was married to whom that was wrong. I respect all people involved including Master Clark whose judgement was doubtless correct according to the law. I am wanting to emphasise the human behaviour side which in turn illustrates the importance of “Spend some time looking after yourself”, “Focus on the main event”, “Concentrate first on what makes most money’s difference” and “Money matters, to everyone.” But families (including my own) often seem to behave as if functional communication is illegal. I am sure you get my drift. I do not expect my comments to get beyond the moderator because they are all facts or my reasonable opinions following the facts. Which is fine. I have a copy.
Sally Elizabeth Alston (nee Payne) inherited around £250,000 from the estate of Peter Graham Mallett. SEA was the wife of the brother of PGM’s wife. PGM’s wife died in 1998. And, just to make it difficult, PGM’s wedding record at GRO is wrong because it refers to “Alstor” not “Alston”. It is difficult to follow anything when records are wrong.
PGM wrote his will in 2004, using a solicitor when PGM was around 89 and left his residuary estate (so that’s the £250,000 x 2) to his 82 year old sister in a nursing home and 70 year old relative, SEA. You work it out. In 2004 there was no inheriting of unused pre-deceased spouse IHT allowance and estate was over £500,000 on death of PGM in 2010. Maybe much of the estate qualified for APR or BPR. I don’t know. But it is unlikely that any qualified for Agricultural Property Relief, because of the rules surrounding APR. PGM was likely able to inherit his wife’s unused IHT allowance purely through luck rather than management. PGM died without children, as far as I can tell.
SEA allowed the £250,000 to fall into her estate after PGM probate of 1 April 2011 before getting her nephew Nicholas Payne (an appropriate advisor) to vary the will of PGM after probate in August 2011 as far as I can see. This makes the £250,000 effectively not fall into her estate but instead be treated as passing from PGM to trust, created in 2011. This trust was called the “PG Mallet Will Trust”. Whether and when this trust was a relevant property trust or a life interest trust, coupled with before and after two years of PGM death rules was where all the problems arose, sorted by Master Clark in the high court. Could not the 76 year old SEA have redirected her £250,000 to, say, PGM’s sister’s children or grandchildren? Or her own children or grandchildren? I favour bog standard solutions, every time. Because if you are a 76 year old millionaire and you inherit £250,000 it is going to cause problems, every time. And a trust is going to be rarely needed in such circumstances – what is always needed in every circumstance and every case is cordial and respectful family relationships.
*And I have no idea why PGM Will was not varied by DoV before assets transferred to SEA by contacting executors/solicitors (same people) for PGM. Instead, assets fell into SEA estate and then Mr Payne went about creating a DoV. What a clunky, obscure, contrived, artificial way of doing it. And it will immediately raise suspicions of hmrc who would then put red flags on every file of every Alston, I suspect. To me it is also flagging up control issues, trust issues and reinforcing my suggestion that the family does not get on with each other, or at least does not functionally communicate, even if they do get on. I am putting a people slant on it all. Because people matter. SEA was 76 when she inherited £250,000 from a 95 year old deceased person. Who invented the word “functional”?
*Please note that Martin Parrin at https://www.todayswillsandprobate.co.uk/main-news/siblings-win-high-court-battle-protecting-trust-from-inheritance-tax/ and many others, including print journalists of newspapers got the facts of this case all wrong. I suspect that after one got it wrong the rest all copied it! SEA’s husband did not die in 2010 it was PGM who died 2010. SEA’s husband died 1988 with estate of £380,000 when IHT threshold was maybe £90,000. I don’t blame journalists for getting it wrong – I am simply highlighting how thorough I am. It is exceedingly unlikely that PGM married SEA after 2004 and before his death in 2010.
*Rachael Griffin of Quilter describes the “within two years of death” and “after two years of death” provisions in IHTA 1984 (as discussed by Master Clark) as “fiendishly complicated”. I call them basic design principles to stop tax fiddling. Take your pick.
*In 2012 SEA was short of income so trustees of PG Mallet Will Trust paid her £4,000 from trust as a loan. I can see the import of structuring it as a loan because then SEA has a £4,000 debt on her estate upon death which reduces her estate taxable to IHT by £4,000. (Or more, if trustees charge interest.) Every little helps. For those of us with extensive practical personal experience in all of this stuff the shock is “Why is SEA, a millionaire, so short of income that she is scratting around for £4,000?” It is an obvious question. I accept there will be an obvious answer and that it is none of my business – only it seems unusual to me in the extreme. I am referring to overall human behaviour. Further, also in 2012 on 6 April, SEA was given an irrevocable life interest in the trust by DoA, thus mandating the income of the trust to SEA. Fine, but why? What is wrong with standard behaviour? What is wrong with trustees choosing to give SEA income from trust on an as needed basis? Or did all the family not get on? Were they all at loggerheads all the time, I wonder? I would have thought there was no need to mandate the income, whatsoever. Trouble with mandated income is that (as far as I am aware) SEA is absolutely entitled to that income and so it cannot be treated as a loan which reduces her estate upon her death. I am just saying that the desire to mandate the income to SEA appears unusual given SEA’s circumstances of being in the wealthiest 1% or 2% for capital in the country. Myriad other ways present themselves for achieving the same effect, better. With mandated income no-one has control. Say trust included a substantial shareholding in any listed company. That company may pay a substantial “special” dividend at any time. Say £30,000. So that would be another £30,000 mandated to SEA. Stuff happens. Experience counts. I cannot see why income was mandated, but I am not criticizing anyone or suggesting any wrong-doing – far from it. Instead, I am celebrating everyone involved and reporting publicly available information.
*To be fair to Nicholas Payne he proved he had doubts about whether the creation of a life interest for SEA (by DoA) would create problems around creating an IPDI for SEA with IHT consequences. Something was obviously gnawing away at Nicholas Payne and he knew it was something to do with 2 years before and 2 years after death and rules surrounding alterations to the type of trust and type of property. Hence Nicholas Payne consulted 3 people in writing who were more conversant with the issues than he was. The reply should have come back “Oooooh, no idea, mate” or “That is beyond my area of expertise” but Nicholas Payne was erroneously told that his plans were fine under the rules. They were not. The interaction of different sections of IHTA 1984 was not properly understood.
*In my opinion, although DoV was “unexceptionable”, the whole course of events was certainly unusual. If all were truly unexceptionable every advisor (and his dog) would be doing it every day and so be aware of the detailed rules. It is highly unusual for the course of events described and, in turn, this course of events was (fairly and reasonably) advocated by Mr Payne because people had failed to previously spend any time looking after themselves in a timely fashion. Indeed, I suspect Mr Payne may have been pulling his hair out because he had repeatedly suggested that family members addressed their own affairs in a functional manner. But they would not. My point is that the overall process was contrived, laboured, unusual and difficult, created by clients refusing to spend any time looking after themselves in a timely fashion. And you all know I am right.
*SEA died 2016 with gross estate of over £1.4m and net estate of £970,000. Maybe this £970,000 included the £250,000 (subsequently grown to £280,000) on trust. When the numbers involved are so large it is important for all family members to functionally discuss what their plans are. I am sure you will agree. The gap between £1.4m and £970,000 may or may not have partly represented debts taken on by SEA as part of altering her abode.
*Master Clark opined that it would be “unconscionable” to not waive the £112,000 IHT bill that everyone agrees hmrc had levied correctly, according to the rules. If I were less charitable than I am I may suggest that many parties have acted in an unconscious fashion throughout. But I won’t. What’s the betting that if it had been Joe Bloggs representing themselves in the High Court rather than a qualified, specialised and legally experienced Mr Payne (supported by a brief) that the ruling would have been the same? I only ask the question – I am not casting aspersions. But I know I cannot ask the question – I know Master Clark will have acted impeccably throughout. Because that is what such people do.
*Master Clark also observed that rescission of the DoA meant that any sums paid by the trustees to SEA under the DoA now need to be paid back to the trust by the estate of SEA. This surely has to have the effect of reducing IHT that was payable by SEA’s estate, if any. I assume everyone else has also spotted this.
*Furthermore, I can make other observations but will limit myself to one. There is something that has gone very wrong regards addresses and postcodes on important legal documents such as wills and grants of probate. They don’t match. I may not know anything about law, but I know how postcodes work. And I know that traditionally solicitors and other legal professionals are meant to be meticulous and thorough. The son of SEA who is co-executor lives at Rosemary Cottage. The will of SEA has correct address for this son in Ide Hill. The grant of probate states Rosemary Cottage is on Hanging Bank in Ide Hill. It is not. Maybe it is another “mistake”. Postcodes are given as the same. I will out-detail anyone if I have to, but much prefer concepts and big picture questions. I will not comment on this observation because it is not my business to comment on this observation. But I have found other faults regards addresses concerning the same case.
Obvious, general questions present themselves. Why do some people not tell substantive beneficiaries of their will that they are substantive beneficiaries? Why do people not ask? Surely, if SEA had known about the £250,000 she would have done something about it (possibly with help from Nicholas Payne who is an ideal nephew to have) before PGM died. And why not alter will of PGM by DoV at same time as probate is applied for, for PGM – always looks better, does that, compared to altering a will by DoV after a legacy has landed in your estate. Since legacy has fallen into SEA estate, why not purchase assets which are invisible to IHT after two years instead of creating a trust with all the concomitant hassle of trustees, potential DoAs, Trust and Estate annual tax returns and all the rest of it? Dealing with the functional, practical, administration of a trust can be onerous and nicely illustrates that everyone should be asking “Is a trust really needed here?” The fact is that family of SEA seem to have shown little interest in their own affairs in a timely fashion, so why are they suddenly going to show interest in being a Principal Acting Trustee (or Lead Trustee as it is nowadays)? Or is Nicholas Payne going to administer trust? The more you delve the more questions present themselves, none of which are my business of course and I don’t want to know the answers, I am using them for sake of illustration.
How are hmrc meant to raise tax? Clearly not by applying the tax rules because everyone agrees that the £112,000 was correctly levied, but the DoA has been rescinded by Master Clark on basis that an advisor, after asking other advisors, got timing all wrong “by mistake” and so the DoA should be rescinded because advisor would not have implemented the DoA if he had got the right answer. The DoV may indeed have been “unexceptionable” my point is that, taking the case in the round, the timeline of events was unusual and exceptional. Exceptional processes need exceptional skills to help, which is what advisors are for. Or advisors that are consulted by advisors are for. If Master Clark had said “You got it wrong, despite taking advice. SEA and SEA’s relatives had reasonable expectation for you to get it right. Tough. Pay the correctly levied £112,000 IHT. Next.” Then hmrc would know where they stood: currently hmrc are open to challenge on any tax payment where the payee can reasonably state that the tax payment was due because of a “mistake”. Obviously the “mistake” has to be of the correct nature for hmrc to agree. I have informed hmrc of this, in writing, and not received a reply.
Further the law is not meant to protect people from their own ignorance. Nicholas Payne was a member of STEP. Mr Payne knew all about other ways of dealing with the £250,000 tax efficiently without bothering with all the complications of a trust – because trusts are invariably complicated as this case has highlighted. If Mr Payne had received correct advice he would not have been ignorant of the relevant facts and would not have implemented the DoA when he did. It is purely because Mr Payne was ignorant of the relevant facts (although he had reservations) that the DoA was implemented when it was. This is unexceptionable and unobjectionable. And the law is not meant to protect people from their own ignorance. If I drive down the road in my correctly insured, taxed and MOT’d car with four bald tyres and I get stopped by a policeman, I can hardly reasonably claim ignorance of the law, can I? I can hardly claim I did not know that tyres were meant to have tread or that I did not know my tyres were indeed bald. Because the police have reasonable expectation that everyone knows this and everyone checks their tyres from time to time. Hence the police would have me banged to rights. And quite right, too. Yet a specialist in trusts can claim successfully in a court that it was all too complicated for him to understand the law? What are Mr Payne’s and the people he consulted position? “We can’t realistically be expected to know anything about Trust Law because we’re specialists in trusts?” Is that how it works? I expect a plumber to fix my leaks, I expect an electrician to sort my electrical install and I expect a car mechanic to fix my broken car. But a STEP member cannot be realistically or reasonably expected to know how to carry out “unexceptionable” alterations to a trust without triggering a tax bill? Come off it. So you can perhaps see my frustration following the facts of the case – not the legal niceties, the humanitarian facts.
What is STEP for? Is it not reasonable to expect a STEP member to get the timing of a DoV and DoA correct so that no IHT is payable? Obviously Master Clark thought not and provided you have shown due care in asking other people it is correct to overturn a £112,000 IHT bill that was correctly levied, by rescinding a DoA which, admittedly, sought to create no particular advantage through the timing of the DoA. What am I asking that is so evil? And in the Payne vs Tyler case the client who has suffered through bad advice was also the advisor and the claimant in the case. It is a fact that Mr Payne (nephew of SEA, remember) was an executor of SEA and a trustee of the trust which he advised, and the trust then caused all the problems.
So, ignoring highly specialised legal knowledge that is the preserve of the very few (say 1 in 100,000), I state it is reasonable for anyone to ask “How come a person who can afford to and takes advice from a nephew regards Trusts and taxation gets a £112,000 IHT bill rescinded, whereas a person of much more modest means gets a £14,000 IHT bill, even though they took professional advice which cost money, but mistakenly exceeded a limit on transfer to trust”?
I opine that it is the type of shenanigans in the case of Payne vs Tyler that gives trusts and trustees a bad name.
It is incumbent on all families affected by IHT to have a functional, communicated strategy that all family members take ownership of. But it sometimes does not happen, hence the £5 bn pa IHT take.
Stay away from other people.