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Government drops plan to extend 1975 Act jurisdiction

Monday, 28 October, 2013

The government has agreed to remove a controversial measure of the Inheritance and Trustees' Powers Bill that would have allowed reasonable provision claims to be brought against the estates of persons domiciled outside England and Wales.

The Bill is largely based on recommendations issued by the Law Commission after lengthy consultation. It was introduced in the Lords in July this year by Justice Minister Lord McNally, and had its second reading last week. It was at the second reading that McNally announced the dropping of the reasonable provision section, which would have amended the Inheritance (Provision for Family and Dependants) Act 1975. As it stands the 1975 Act only allows claims on the estates of deceased persons domiciled in England and Wales.

There was much opposition to this attempt to extend the 1975 Act's jurisdiction, not least because it would have required English courts to make possibly unenforceable orders affecting overseas property. According to McNally, the measure was finally killed off by objections from members of the Scottish government, who complained that it might undermine inheritance rights under Scots law (as, of course, it could also do for jurisdictions outside the UK).

'We have carefully considered these concerns from our colleagues across the border,' said McNally. 'I do not now believe that it is possible to engineer a compromise on this point that would answer these concerns and retain the benefits of our original proposal.' The minister also acknowledged that his additional jurisdiction proposal was not only highly controversial but had not been based on the Law Commission's findings. McNally has not yet moved his amendment, but he said it would 'delete the additional ground of jurisdiction in its entirety'. This indicates he will not attempt to replace that section with any of the other options canvassed in its consultation ‒ one of which was to base an extended jurisdiction criterion on the existence of real property in England and Wales.

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