In reading the title you might think this is just another inheritance tax (IHT) planning article but the death here is referring to murders (or potential murders!).
Televised commentary on farm murders have come through the recent 'White House Farm' murders and the fictional Welsh farm dispute of '15 days' with a number of murders. Perhaps with everyone self-isolating at home there has been increased watching of such murder mysteries. Concentrating on the fictional Welsh drama, I confess it is impossible for me to not shout out legal and tax points at the screen as the drama unfolds. Let’s consider some of the points of the story. At this point it is worth mentioning a few Budget updates and coronavirus pandemic potential impacts.
Jewelry goes missing
Perhaps less dramatic than some of the other legal and tax points but I found myself questioning: “why didn’t the executor secure the farmhouse/assets?” Perhaps that is answered in part over the confusion over where the Will was located and what was the valid Will. The question I possibly shouted at the drama was why didn’t the mother make it clear to her family where the Will was located and who was executor? Perhaps the answer to that is when it transpires that the mother is leaving the farm to her husband’s brother and not any of her children. The 'uncle' in question was originally disinherited by her father-in-law.
Validity of the Will
When it transpires that the brother-in-law has used his solicitor to draft his sister-in-law’s Will so he is beneficiary and the children are questioning validity, I obviously shouted: “obtain a Larke v Nugus statement ASAP”, but possibly some of the dramatic emphasis in the storyline is lost.
The question of did the mother receive any tax planning or succession planning advice would have possibly been dull. Finding out why and how everything changes in a professionally structured way whilst taking calm independent legal advice by the siblings would have possibly spoilt the dark, dramatic mood.
Likewise, when the eldest son who thought he was the beneficiary, shouts at his uncle (who turns out to be a current Will beneficiary) “get off my land”, at an early stage I found myself shouting back “obtain legal clarity first” and “check the uncle’s legal rights to occupancy”. The tax adviser’s role is key in these situations as a complex case such as this needs tax planning and discussions prior to the “bombshells” which could have helped reduce the number of murders – yes 'tax planning and legal clarity helps save lives'! Admittedly it also reduces the dramatic content.
Eldest son’s development plans
As part of the spellbinding storyline was the eldest son’s desire to take over all the farmland and sell for development and possibly not include any of his siblings, apparently a deal was close. At this point I am obviously stating loudly that all the siblings need independent tax and legal advice. Consideration as to qualification for Entrepreneurs’ Relief (ER) or Rollover Relief for Capital Gains Tax (CGT) would be a key issue.
Please note that in the Budget the lifetime limit for ER has reduced from £10 million to £1 million which must be factored in and possibly highlights the future strength of the 'rollover buyer' when we hopefully 'get to the other side'. As the probate value would be the base cost for the CGT, had the eldest son or all the siblings achieved the sale the importance of a quality probate valuation with hope value being taken into account per Foster (Foster v R&C Commrs UKUT0251 (LC)) goes through the mind, and I am genuinely hoping there is good tax advice, not all efforts being focused on trying to identify the murderer.
Father’s promises and concerns
It can be argued that at the root of the mother’s decision to change her Will to her brother-in-law was that he was the father of the youngest child and the husband (the owner of the land) was aware of this. Why then did he pass the ownership of the farm to his wife? A new Will with a trust of the assets that qualified for Business Property Relief (BPR) and Agricultural Property Relief (APR) for inheritance tax to his children could have been considered for example. It is good to note that both APR and BPR survived the 2020 Budget despite speculation to the contrary. If his brother did murder him and did inherit everything, Will validity would again be a question.
It might seem that murders and mental torture could have been avoided with well thought through careful and positive legal and tax advice to protect all parties, but I accept it would have totally spoilt the drama.
Positive action points to destroy a storyline:
- the uncle taking proper clear legal advice at the time he was originally inherited.
- the father taking proper legal advice for his Will knowing his wife was unfaithful and protect his children in a tax efficient way,
- once the father was dead (murdered) the legal and tax arrangement for his brother farming the land being made clear and tax efficient,
- the eldest son’s plans to 'land grab and develop' being given cautious legal and tax considerations accepting that the 'long-term sharing' strategy could be more beneficial for all parties than 'smash, grab and develop'.
With the property market in lockdown and possibly a few more farm murder mystery box sets/'catch up' TV being accessed by the Farming & Rural Business Community, I hope the article is useful for when everyone is relaxing and trying to escape tax.
Supplied by Julie Butler F.C.A. Butler & Co, Bennett House, The Dean, Alresford, Hampshire, SO24 9BH. Tel: 01962 735544. Email: firstname.lastname@example.org, Website: www.butler-co.co.uk.
Julie Butler F.C.A. is the author of Tax Planning for Farm and Land Diversification (Bloomsbury Professional), Equine Tax Planning ISBN: 0406966540, Butler’s Equine Tax Planning (2nd Edition) (Law Brief Publishing) and Stanley: Taxation of Farmers and Landowners (LexisNexis), and editor of Farm Tax Brief.
1 April 2020