Private Client Legal Updates (12 January 2023)

A summary of key legal updates for the Private Client industry over the past three weeks is as follows. 

Offshore – amended ROE legislation

On 21 December 2022, the Register of Overseas Entities (Verification and Provision of Information) (Amendment) Regulations 2022 were published and laid before Parliament. These amend the Register of Overseas Entities (Verification and Provision of Information) Regulations 2022 and are due to come into force on 12 January. The amendments relate to the verification process for applications in respect of the register of overseas entities ("ROE"); specifically:

• regulation 5(1) (meaning of "relevant information") excludes information about governments, public authorities or beneficiaries of certain pension scheme trusts from needing to be verified. Also excluded is information which has already been verified relating to updating the register and applications for removal from the register;
• regulation 6(6) (verification: general) allows a relevant person to verify certain information relating to beneficial ownership differently from other information;
• regulation 7(4) (verification: individuals) replaces the term "close business relations" with a more precise phrase in new regulation 7(4)(aa): "an individual who is an officer of a legal entity or legal arrangement of which the person whose identity is being verified is also an officer or who is engaged in a joint venture with that person"; and
• regulation 8(1) (retention of information) expands the scope of the information which must be retained by a relevant person to material "obtained or received by a relevant person".

Register of overseas entities: verification and provision of information amendment regulations | Practical Law (thomsonreuters.com)

Trusts – new consultation to include Trust Register rules

The Society of Trust and Estate Practitioners ("STEP") has reported in their UK News Digest that HMRC plans to include some proposals on the Trust Registration Service elements in the forthcoming Treasury consultation on further changes to the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, in particular focusing on scope and exclusions. STEP and other professional bodies are calling for improvements in respect of insurance policies, Wills and estate administration and the co-ownership of property. Industry News Digests | STEP

Mental capacity – amended application process for deputyships

From 1 January 2023, the process for applying for a property and affairs deputyship ("PA deputyship") has changed and notifications to interested parties must be made upfront, before the application is submitted, not afterwards. In addition, the application itself can be made online, whereas previously it could only be made on paper. To facilitate these changes, there is a new Practice Direction and new Court of Protection forms COP14PADep and COP15PADep (which replace the former COP14 and COP15). All new PA deputyship applications from 1 January 2023 must follow this new process; from 1 February 2023, applications that do not will be returned to the applicant. Changes to P&A deputyship applications from 1 January 2023 – Court of Protection Handbook

Estate administration – probate waiting times

According to the latest Ministry of Justice statistics published on 15 December 2022, the average time to issue a grant of probate in England and Wales was between five and seven weeks from receipt of the application. Averages for letters of administration with a Will and without a Will was nineteen and fifteen weeks respectively. Family Court Statistics Quarterly: July to September 2022 - GOV.UK (www.gov.uk)

Estate administration – review of law on disposal of deceased's body

On 22 December 2022, the Law Commission announced that it is reviewing the laws concerning the disposal of a deceased person's body. The applicable rules and regulations are outdated and complex, and largely date back to the 19th century. In particular, under current law, there are no guarantees that a person’s wishes for what happens to their body after death are respected and this legal uncertainty can lead to disputes between family members. The project will start with a scoping phase to enable the Law Commission to agree the terms of reference with the government. Outdated laws on disposal of the deceased to be reviewed, including burials, cremation and other methods - Law Commission

Contentious estates – executor's standing to sue

In Jennison v Jennison and another [2022] EWCA Civ 1682, the Court of Appeal ruled that an executor appointed in a foreign Will has standing to bring a claim irrespective of whether a grant of probate has issued in England and Wales or a foreign grant had been resealed. The ruling meant that the widow and executrix of an Australian resident deceased had standing to sue the deceased's brother in England for alleged breaches of trust in connection with the deceased's estate in England. Court of Appeal considers approach to determine standing to sue where executor appointed under foreign will | Practical Law (thomsonreuters.com)

Mental capacity – OPG notification of death procedures

The Office of the Public Guardian ("OPG") are making changes to their procedures for notifying the death of a donor of a Lasting Power of Attorney ("LPA"), an attorney under an LPA, a deputy, guardian or missing person. The changes are designed to simplify the process and will mean that in most cases there will be no need to send in a proof of death as the OPG can verify the death via an online system. Previously, the OPG requested proof of death for every death notification. An updated practice note is to be issued later in January 2023. Notification of death: Public Guardian practice note - GOV.UK (www.gov.uk)