MyHMCTS makes divorce financial remedies much easier

For years, financial remedies legal processing has involved long, drawn-out processes that tied up the legal system and caused heartache for couples who simply wanted their relationships to come to a fair conclusion. However, as reported in the Law Gazette this month, that’s all changed. Family law solicitors up and down the country have welcomed the introduction of HM Courts & Tribunals mandatory digital portal, which is already slashing the time it takes to process financial issues in a divorce from three months to as little as seven days.

Previously, contested financial remedy cases were taking an average of 77 days to reach their conclusion. However, creating the digital portal has sliced through the paperwork and made it faster and easier for family law solicitors and their clients to get the result they want, even if a case is referred to a judge more than once.

Now, rather than filling in the notoriously complicated D8 form, divorce applications go through the MyHMCTS online portal. The exceptions to this changeover are civil partnership dissolutions, judicial separation and nullity.

Hailed as a success by family law solicitors

Since the portal became an option in 2018, more than 150,000 divorce applications have been processed. The system has been deemed to be such a success that as of 4th October, paper applications will come to an end and everything will be done digitally. The system, which was introduced as part of the government’s courts reform programme, has been hailed as a success by family law solicitors across the country.

The digital system has also cut down dramatically on the number of returns, with only 1% of online applications requiring amends, compared to around 20% of paper submissions. Overall, HMCTS has enabled the courts to finalise divorces in around 20 weeks on average, compared to the previous 60 weeks for paper applications. This makes a huge difference to couples who simply want to get on with their lives and don’t want to be stuck in the limbo of divorce for over a year.

A couple of stumbles along the way

For a government-backed digital system, the problems have reasonably manageable. The system hasn’t been all plain sailing, and there have been a few issues along the way. The Law Gazette also reported the fact that the system cannot handle a Notice of Change if an individual decides to transfer responsibility to a legal representative after initiating the process as a petitioner litigant. In this instance, the case needs to transfer back to the old paper method, which could delay the process considerably.

Divorce solicitors are recommending that couples who may anticipate conflict when it comes to the divorce process should go through legal counsel from the outset to avoid this issue. For others, the availability of the portal means that while couples are sorting out the ‘nuts and bolts’ of the process online, divorce solicitors can focus on the financial arrangements, which are often the most complex (and apart from child access) the most important aspect of a separation.

Solicitors offering financial remedies legal advice are using the portal as a matter of routine, and apart from the issue surrounding the Notice of Change, it appears to be working remarkably well. The HMCTS portal is also being activated to take on a range of other processes as well as divorce and financial remedy including probate, immigration and asylum appeals and family law. Anticipation is that it will streamline the legal process, allowing solicitors to provide clients with a more personalised and focused service in the long run.

If you’re going through a divorce and need financial remedies legal advice, talk to one of our expert team in confidence today. We offer a full service including access to the best divorce solicitors in the region and are here to help you get the resolution you want. For more information please email or phone 020 8349 0321.

Commercial rent and the Pandemic – what next for landlords?

Back in 2020, when the Covid-19 pandemic was in full swing, the government brought in a range of measures that effectively curbed the right of landlords to recover rent arrears from commercial tenants, regain possession of premises from those who had fallen behind in their payments, and prevented landlords from forfeiting leases. Commercial solicitors for landlords up and down the country were inundated with queries and were busy providing commercial landlords advice for those affected.

Initially, there was an ‘end date’ in sight when landlords could start to try and recoup the losses and arrears they’d incurred during the height of the pandemic. However, recently the rug has been pulled out from underneath landlords, as under the Coronavirus Act 2020, the moratorium that prevents eviction or foreclosure of commercial leases on the grounds of non-payment has been extended to the 25th March 2022.

A moratorium on debt recovery

Prior to the Covid-19 crisis and the instigation of the 2020 Act, landlords were entitled to remove goods under the Commercial Rent Arrears Recovery clause if a total of 544 days’ rent was outstanding. Now, the right to carry out recovery has been postponed until March 2022.

The Corporate Insolvency and Governance Act 2020 had also stopped landlords from presenting a winding-up petition (unless they believed that Covid-19 was not the primary cause of the debtor’s financial insolvency). That has now been rescinded and may be one of the only ways commercial landlords can begin to claw back some of the losses they’ve incurred over the past two years.

An uneven playing field

The government is aware that certain sectors, such as retail, catering, and hospitality, have suffered far more of an impact than others, and sector-specific legislation is due to be introduced that will help landlords (and their tenants) tackle rent arrears without devastating the tentative shoots of recovery that we’ve seen in the past couple of months. The new system will apply only to businesses that have been directly affected by the pandemic, and those who have carried on trading normally will be subject to the previous legislation, meaning landlords can take action to recover overdue rent payments.

One of the elements is a ‘ringfenced arrears’ concept, which means that the new legislation will only apply to debts built up from March 2020 onwards. Debts or arrears before that period (and any that are accrued after the moratorium has been lifted) are not protected and landlords are well within their rights to pursue these outstanding payments. Commercial property solicitors in London are recommending that both landlords and tenants tackle these earlier outstanding debts first through negotiation and if things escalate, arbitration when a resolution cannot be reached between the landlord and the tenant.

If outstanding debts date back to before March 2020 then landlords also have the right to circumvent the ‘no eviction’ rule, especially if the tenant has breached other conditions of their tenancy agreement or lease.

Is it going to work?

There’s concern on both sides that the extension of the moratorium will result in tenants building up ever greater levels of debt, and landlords struggling to stay afloat while having almost no income from their properties. However, the pandemic has changed everything, and commercial solicitors for landlords are seeing an influx of queries from property owners desperate for guidance on what to do next. Currently, the situation is at a stalemate, and while the full range of rent debt recovery options is not available, the only other option that landlords have is to pursue the claims through the civil courts. The capital has been particularly badly affected by the commercial rent arrears crisis, and commercial property solicitors in London are advising landlords to consider all the options available to them, including civil action.

Of course, the time and additional costs of this method of debt recovery have to be factored into the overall cost, but there have been a series of successful civil cases recently where the courts have found in favour of the landlord. Acting now may also allow landlords to take full advantage of the renewed availability of winding up proceedings post-September 2021, as the judgement can be used as proof of inability to pay on the part of the tenant.

Nobody has come out of the Covid crisis unscathed, and both commercial tenants and landlords have been hit hard. If you’re a commercial landlord and you’re worried about rent arrears and how to recoup your losses, talk to one of our commercial solicitors for landlords and get expert, no-nonsense and up-to-the-minute advice today.

If you would like to talk in confidence to a Commercial Property expert, please email or phone 020 8349 0321.

Power of Attorney – what is it and why do you need it?

We all want to believe that life will be reasonably easy, with minimal bumps along the way. However, the truth is that as we get older, illness or even an accident can render us incapable of making our own decisions. If that happens then it’s vital that you’ve thought a step ahead and put in place a Power of Attorney to take care of your decisions on your behalf.

If your ability to make your own choices is taken away from you as a result of dementia, long-term conditions such as motor neurone disease, or a traumatic head injury, then it’s reassuring to know that your affairs will be looked after by someone of your choosing, and in the manner that you would want. This is what Power of Attorney is all about. It’s about ensuring that while you still have the ability to choose, you can put in place a safety net that will protect you once you are no longer able to make your own decisions.

Why do you need to choose someone with Power of Attorney?

Dementia and Alzheimer’s disease affects around one in 12 of the UK’s population. It’s not just a condition that’s confined to the over-75s – there are thousands of cases every year of what is termed as ‘early-onset dementia’, which can strike people in their 50s. Degenerative diseases such as Motor Neurone Disease, although rare, affect around 5000 people in the UK and can strike at any age. Similarly, severe head trauma as a result of an accident or medical condition such as a progressive brain tumour can affect people of all ages.

Once your ability to make your own decisions about your finances or your well-being and health care has been compromised, it is up to someone else to step up and take on the role on your behalf. To allow them to do this, you have to grant an individual Power of Attorney.

Without this safeguard in place, you’ll have no decision over what happens with regard to your healthcare requirements or financial management. Without a Power of Attorney in place, the role is taken on by your local council, who will decide when and where you receive care, and whether your assets such as your family home could be sold to pay for long-term care.

A lack of a trusted person in the role could also result in your financial affairs being handed over to a stranger to manage. This could seriously impact any inheritance your chosen benefactors could receive, as your assets could be used to pay for your care.

How do you avoid this?

The simplest way to avoid handing your future over to your local council (as well-meaning as they may be), is to arrange well in advance to have someone you trust to take on Power of Attorney on your behalf. This can be easily arranged with Power of Attorney solicitors, who will be able to provide you with expert legal advice on the process from start to finish. The charity Age UK also have extensive information on how to arrange a Power of Attorney for older people.

It’s quick and easy to do. Simply book an appointment with one of our experienced private client lawyers in London, who will sit down and go through the paperwork with you. You can contact the Office of the Public Guardian to get the relevant forms and information pack, and while you can technically complete it all online yourself, our top tip is to get expert legal advice before you sign the documents to ensure you’ve completed them correctly. This could prevent any legal challenges later on.

You’ll need to get your LPA (Lasting Power of Attorney) documents signed by a certificate provider, who can confirm that you haven’t been coerced or pressurised into signing the document. The document is then registered with the Office of the Public Guardian for a small fee, and within around nine weeks the status of your chosen Power of Attorney representative will be recognised and fully registered.

It’s simple, it’s straightforward, and it’s an essential process that could protect both you and your loved ones should the worst happen.

If you would like to talk in confidence to an expert about arranging a Power of Attorney document, please email or phone 020 8349 0321.

North London family lawyers shortlisted for LexisNexis Family Law Award

Head of Family Team, Graeme Fraser, has been shortlisted in the Partner of the Year category at the LexisNexis Family Law Awards 2021, while Associate Solicitor, Holly Covington, has been shortlisted in the Young Solicitor of the Year category.

Graeme is a well-respected figure amongst family lawyers, having served in senior committee positions with Resolution, including as current Chair of the Cohabitation Committee, and having recently been appointed to the Family Procedure Rule Committee (FPRC).

He is a past winner of the Family Law Commentator of the Year category at the Family Law Awards and his team was also shortlisted the Family Law Firm of the Year category at the 2020 awards

Meanwhile, up-and-coming Family Solicitor, Holly Covington, was nominated for the Young Solicitor of Year accolade, having impressed since joining the firm in September 2019. Since then, Holly, who qualified in November 2018, has handled complex matters usually reserved for much more experienced lawyers, winning praise from colleagues and senior members of the bar alike.

She also volunteers for the charity, Rights of Women, on the Family Law Advice Line.

Graeme Fraser said: “Family law touches on the fundamental elements of our clients’ lives, finances and identities in ways that few other areas of law do. It is vital that we deliver the best possible service to each and every client, taking every opportunity to reduce unnecessary conflict where possible.

“Holly has really impressed over the last two years. Not only does her technical skill belie her experience, but she has also demonstrated impressive dedication to clients and, particularly to improving outcomes for women in the family justice system.

“I am delighted to have been shortlisted and it is great to see Holly shortlisted too.”

Holly added: “It is wonderful to have been shortlisted and to have been recognised in this way by the judges.

“Our firm is strongly dedicated to its clients and this has allowed me to make a real difference over the last two years.”

The winners of the Family Law Awards 2021 will be announced at a ceremony in London on 24 November 2021.

End of stamp duty holiday cools property market

A recent surge in property prices is coming to a close as the stamp duty holiday is withdrawn, bringing an end to a boom that has seen increases in the cost of housing hit a 17-year high.

The holiday, brought in alongside a raft of other measures designed to cushion the impact of COVID-19 restrictions on ordinary families, has been credited with causing the surge, alongside a general desire for more living space caused by the realities of lockdown life. This surge sent house prices soaring to a level 10.5% higher than the same time last year, with the average residential property now costing £244,229, as buyers rushed to make purchases in anticipation of the measure’s tapered withdrawal.

However, that effect is beginning to wane, as houses worth more than £500,000 which led the boom with a 37% year on year increase become eligible for the full level of stamp duty payments again. This is likely to halt the steep rise in prices seen in recent months, but it may not puncture a hole in the market as some have feared.

Martin Beck, a senior economic advisor to the EY Item Club, said: “The pandemic has had potentially long-lasting effects on property preferences, not least raising demand for larger homes in a world of more home working. Combined with fuel for property deposits provided by the substantial savings accumulated by households during lockdowns, the ingredients are in place to maintain house prices at current, elevated, levels.”

Brought in during July 2020, the stamp duty holiday was designed to help people whose circumstances were affected by COVID to move house and brought the cost down to zero for houses worth less than £500,000. After almost a year, the holiday is now being slowly withdrawn and only affects houses worth less than £250,000 from 1 July 2021, and from 1 October the cost will go back to pre-pandemic levels.

Need to make your move before it’s too late, or do you want to strike while the iron is hot and get the most value for your assets? Get in touch with OGR Stock Denton. With 50 years of experience providing residential property services to thousands of families across London and the UK, we have the experience and skills to make your purchase or sale as quick and easy as possible.

To make an appointment to discuss any aspect of residential property law please email or phone 020 8349 0321.

Protection From Creditor Enforcement Extended Until 30 September 2021

At the time of writing, Coronavirus statistics were looking fairly positive. Although hospital admissions have been rising day by day, the increase in Covid cases is being met by a wall of vaccinated people which has so far prevented the NHS from being overwhelmed.  However, there is news that the coming winter is likely to be a tough one, not because of Covid, but due to the uptick in flu numbers.  Acknowledging that as a country (and a planet) significant battles against the pandemic have been won but the war is far from over, the government has extended protection against statutory demands and winding up petitions being brought against businesses affected by Coronavirus until 30 September 2021.  The relaxation in conditions for a company to enter a Part A1 moratorium also continues until 30 September 2021 (although this was already extended in March).

As with the extension of rent-arrears related forfeiture and rent-arrears recovery under Commercial Rent Arrears Recovery (CRAR), the news is great for debtors, creditors are not left in such a rosy position. 

What is the law behind the Coronavirus-related creditor enforcement protection?

To help battling businesses survive the ramifications of the first lockdown, in June 2020, the government amended insolvency laws via the Corporate Insolvency and Governance Act 2020 (CIGA 2020).

CIGA 2020 was quickly pushed through Parliament and amended insolvency legislation to provide more favourable conditions to struggling companies throughout the Coronavirus pandemic.

The Act provided for:

  • Some companies, in certain circumstances, to gain a moratorium for 20 business days (this could be extended), giving them protection from creditors and allowing them to delay paying certain debts which fell due before and during the moratorium.
  • The creation of a Restructuring Plan, which if approved by the Court, would mean some creditors would have to accept revised terms relating to debts owed.
  • Prohibition on issuing a wind-up petition based on statutory demands.
  • Prohibition on presenting winding-up petitions or making winding-up orders if the evidence showed that if it were not for the pandemic, the circumstances surrounding the petition or order would not exist.
  • Prohibition on terminating a supply contract if the reason for doing so is due to one of the receiving parties undergoing an insolvency process.

This is only a small sample of what CIGA 2020 covers and it is beyond the scope of this article to go into further detail.  In October 2020, certain provisions of the Act were extended, some until 30 December and others to 30 March 2021.  The prohibition of winding-up orders and statutory demands was further extended until June 2021 and now to the end of September.

When can a winding-up petition be presented?

Until 30 September 2021 (and perhaps beyond), a creditor cannot present a winding-up petition based on a statutory demand served from1 March 2020 to 30 September 2021.  Furthermore, until September 2021, a winding-up petition can only be presented if the creditor can satisfy the following test:

  1. The Coronavirus pandemic has not had a significant bearing on the debtor’s organisation; or
  2. The grounds for the petition would have applied even if the company had not been negatively impacted by Coronavirus.

The Court is also forbidden to make a winding-up order unless the above test has been satisfied.

How an Insolvency or Commercial Solicitor can assist you if you are struggling to pay your creditors

The extension on banning commercial lease eviction and winding-up petitions will be extremely frustrating to landlords and suppliers, some of whom have been waiting over 12 months for payment.  At some point, the extensions will have to cease and there could well be an influx of business insolvencies, especially for the small number of organisations that, rather than putting in a strategy to pay their creditors, have allowed the can to roll merrily down the road, hoping for further extensions.

Although the government has indicated it is planning to enact legislation to potentially ‘ringfence’ rent arrears so tenants can focus on paying current rent owed, the vast creditor protection measures currently in place cannot carry on forever.

If you have been impacted by the pandemic and associated lockdowns, the sooner you seek professional advice from an Insolvency or Commercial Solicitor the greater chance you have of negotiating a fair re-payment plan and avoiding insolvency and possibly personal liability.

When it comes to outstanding debts, the earlier you confront matters, the more choices you will have regarding meeting your creditors’ need for payment.

To make an appointment to discuss any aspect of insolvency law please email us or phone 020 8349 0321.

Ban On Commercial Lease Evictions Extended Until March 2022

The Government has announced that the moratorium on commercial lease evictions has been extended until March 2022.  The decision has resulted in considerable controversy, with those in the arts, hospitality, and events sectors welcoming the news, and property companies furious that their legal rights are being further curtailed.

James Raynor, chief executive of the British and Irish arm of Grosvenor Property Group, told the media:

“I find it astonishing that one whole industry is being targeted by government intervention in this way and being deprived of their rights under the law. Owners and occupiers clearly need to work together in sensible partnership. I don’t see this helping, sadly.”

Melanie Leech, head of the British Property Federation, also condemned the move, telling City AM:

“The government has failed to recognise that commercial property owners are essential to the health of our town centres.”

“Another blanket extension to the moratoriums will provide further opportunity for those well-capitalised businesses who can afford to pay rent, but are refusing to do so, to continue their abuse of government and property owners’ support and will cast a long shadow over investment to build back better.”

It has been estimated that firms in retail and hospitality already owe £5bn in unpaid rent.

Full re-opening delayed

The announcement comes on top of the government’s decision to delay the final step in re-opening Britain following the Coronavirus pandemic lockdown measures that have been in place in some form since March 2020.  Prime Minister, Boris Johnson has delayed the dispensing of masks, social distancing, and limits on numbers allowed to attend sporting events, theatres, and cinemas will remain in place until 19 July 2021.  Nightclubs will also remain shut and the work from home edict will continue.  However, the rules on the number of guests allowed at weddings have been relaxed albeit with several restrictions such as facemasks to be worn indoors and table service only for food and drinks at hospitality venues.

The four-week delay to the end of lockdown measures will put even further pressure on the hospitality, cultural, and tourism sectors.  It is hoped that the extension on Commercial Lease Evictions will allow tenants time to re-establish their business and rebuild cashflow so they can pay off rent arrears and other debts whilst continuing to trade.

Landlord concerns on Commercial Leases 

Although the extension of the ban on commercial lease evictions provides relief to tenants for unpaid commercial rent, landlords argue that they have been expected to act as a bank to ensure the economy keeps functioning.  There is also the knock-on effect on pension funds which are heavily invested in the commercial property sector.

Landlords are also expected to make allowances for the ringfenced rent arrears when businesses were forced to close completely during lockdowns and ‘share the pain’ with tenants.  This has resulted in landlords writing off millions of pounds in debt.

The other concern landlords have is that large, profitable companies have been refusing to pay rent despite being allowed to trade through the pandemic.  Furthermore, many large companies are using CVAs to reduce their commercial property liabilities through closing stores, writing off arrears, and demanding rent be reduced in low-profit locations.  However, this month landlords won a rare victory concerning CVA’s when the High Court ruled in Carraway Guildford (Nominee A) Ltd and others v Regis UK Ltd and others (2021) that Regis Hairdressing Group’s CVA was for the benefit of its company shareholders, finance creditors, and trade suppliers at the expense of the company’s landlords.  Regis was proposing that rents would be reduced by between 25% and 75%, and arrears reduced to just 7% of their value.  Meanwhile, a long list of ‘critical creditors’ including shareholders and International Beauty LTD (which is also a shareholder) were left entirely unaffected by the CVA.  Mr Justice Zacaroli ordered the CVA to be revoked.

How a Commercial Property Solicitor can help commercial landlords and tenants

The continuing economic effects of the biggest pandemic in a century continues to be felt by everyone. What is essential for both landlords and tenants is that they are aware of their legal rights and have professional support to ensure their business interests are protected.

To make an appointment to discuss any aspect of commercial property law please email us or phone 020 8349 0321.

Graeme Fraser appointed to the Family Procedure Rule Committee (FPRC)

OGR Stock Denton LLP is delighted to announce that the Lord Chancellor has appointed Graeme Fraser, Partner and Head of the Family team, as a practitioner member to the Family Procedure Rule Committee (FPRC) from 1st March 2021.

Graeme Fraser commented: “I am delighted to have started a three-year term as a Solicitor member of the Family Procedure Rule Committee.  It is an exciting time to be involved, with considerable changes to family legislation afoot.  I look forward to fully contributing my practitioner experience to this role.” 

What is the Family Procedure Rule Committee?

The FPRC was established under Section 77 of the Courts Act 2003 to make family procedure rules. It aims to develop clear, easily understandable rules to create an accessible, fair, and efficient family justice system.  The Family Procedure Rules were implemented in 2011.  The Rules and supporting Practice Direction continue to be reviewed and updated to ensure they are in line with new legislation and policy initiatives.

Members do not receive remuneration for their work (except for reasonable out-of-pocket expenses).  The selection process is exceptionally rigorous, as Members need to demonstrate not only a solid working knowledge of Court and administrative processes within the family jurisdiction, but they must also be committed to valuing diversity and understand the impact of Family Procedure Rules and Practice Direction amendments.

About Graeme Fraser

Graeme Fraser is a Family Law Solicitor specialising in finance and children cases.  He has experience at High Court and County Court levels of the Family Court.  Graeme is a Resolution accredited specialist in complex financial remedies and cohabitation, the Trusts of Land and Appointment of Trustees Act 1996 and has the Law Society Family Accreditation.  He is also Chair of Resolution’s Cohabitation Committee.

About OGR Stock Denton LLP

Based in North London, OGR Stock Denton LLP is a full-service law firm that has been assisting businesses and people with legal matters for over half a century.

Tax and Trusts in the Cryptic Cryptosphere

Bitcoin, Ethereum, even Dogecoin – many will have been scratching their heads in recent months over the latest mania to grip the nation and the wider financial community. We could talk about non-fungible tokens (also known as NFTs), but it is perhaps best to leave that aside for now. This article looks at the growth of cryptoassets and it can form part of an estate for tax purposes. 

Current estimates put the market capitalisation of all cryptoassets at around $2 trillion following an astronomical surge in interest and investment so far in 2021. This burgeoning market and its underlying asset class is the internet’s gold with a new generation of investors rushing to reap the initial gains, even with the plentiful supply of critics and naysayers.

What might appear to be 2021’s version of the late 1990s dotcom bubble or 1636’s tulip mania, institutional investment is on its way and, with that, wider societal acceptance and faith in this new asset class. By way of comparison, the total value of the world’s gold is estimated to be around $9 trillion and the value of all global investments (including publicly traded shares, bonds and real estate etc) is around $360 trillion. By comparison, the market capitalisation of cryptoassets is not yet even 25% the size of gold and less than 0.3% of the value of all globally invested wealth.  

To understand cryptocurrency, let us consider gold further. Gold has been in circulation for  the purposes of trading and as a store of value since time immemorial. It is a curious metal as it serves little practical purpose in industry, but it has retained its value over time due to two fundamental characteristics: its attractive appearance and use in jewellery and, most importantly of all, its finite supply. Markets fluctuate, but supply and demand are its essential forces. For what is a marketplace other than the convergence of human sentiment and feeling in a financial context? For there to be demand for gold, there has to be widespread faith and acceptance not just in the value of the asset but also the knowledge that you own something that not everyone has but that everyone, potentially, wants. Enter cryptoassets…

Let us talk tax, shall we?

Rather than delving too deeply into this cryptic world and championing its merits as an asset class, let us turn to the more wearisome world of tax and estate planning.  We are witnessing a seismic transfer in wealth from traditional capital assets to cryptoassets and investors are increasingly asking how their assets might be taxed and how they should be held both during their lifetime and on death.  

First and foremost, what is a crytoasset? HMRC appear to have also been scratching their institutional head in recent years and perhaps, to the displeasure of some, we finally have some certainty on their interpretation. Of course, we should not forget that this is a fast changing area and HMRC’s interpretation is not yet enshrined in law. We should not, however, underestimate HMRC’s efforts to legislate in the absence of legislation

Importantly, HMRC does not consider cryptoassets to be currency or money.

For individuals, anyone disposing of cryptoassets will be subject to UK capital gains tax (CGT) on the gain, and the gain should be reported on their self-assessment tax return.

There is some possibility, however remote, that HMRC considers that an individual’s activities fall under the category of trading as they are buying and selling the assets on an ongoing basis. HMRC will evaluate each case on its fact and will consider factors such the frequency, level of organisation and sophistication whereby such activities could constitute trading. To the disappointment of avid crypto investors, for UK tax purposes, profits will be treated as income and so be subject to UK income tax and not CGT. This would invariably mean that trading in cryptoassets attracts a higher rate of tax than if an investor bought cryptoassets and disposed of their holdings as a later date. Investors should be aware of this possibility at the outset.

There is, however, one curious cultural characteristic of the crypto community: HODLing. This term was popularised after an early crypto investor explained that his strategy with Bitcoin was to HODL, a clear misspelling of the world HOLD. In more recent years, HODL has become the defining feature of the crypto world and now means that you intend to Hold On for Dear Life and therefore never sell! The expectation is that by HODLing, investors will limit the supply of cryptoassets on the market and therefore inflate the price as demand continues to rise.

Now, naturally, if an investor is ‘sitting’ on and not realising a gain then no tax arises in such circumstances. However, given the UK’s current debt crisis, perhaps the government will ponder a wealth tax which could target holdings of wealth including cryptoassets. This is will be an area to watch in the coming months.

Where is my asset located for tax purposes?

For the majority of clients who are UK resident and domiciled for UK tax purposes, HMRC will treat your disposals of cryptoassets in the same way that they would treat any gain arising anywhere in the world, namely that it falls into the UK tax net. For UK resident non-UK domiciled clients, the answer is far less straightforward. To summarise, individuals who are resident but not domiciled here will pay tax only on their UK source income and gains and on non-UK source income and gains only to the extent that they are remitted (ie brought back) to the UK.

As for cryptoassets, how do we determine whether they are UK situated or not and therefore whether they fall into the UK tax net for non-domiciled individuals? Cryptoassets are intangible and digital assets comprising a set of code that is recorded on a decentralised ledger also known as blockchain. As there is no central register or geographically identifiable ledger, the usual rules on determining the situs of intangible assets are thrown up into the air.

HMRC released guidance at the end of 2019 setting out their view that the taxpayer’s cryptoassets are situated in the jurisdiction of the taxpayer’s residence. We assume that HMRC is referring to tax residence (determined by the UK’s Statutory Residence Test) and not habitual residence. The consequence of this, to the extent that it is upheld and perhaps passed into law at a later date, is that a non-domiciled individual who is tax resident in the UK will pay UK tax on the disposal of their cryptoassets merely because they are resident in the UK for tax purposes. This is a departure from the typical rules relating to the remittance basis of taxation (applicable to many UK resident non-doms) such that these individuals can no longer shelter ALL of their offshore income and gains from the UK tax net.

A practical example best illustrates this departure from the rules. Mr X has been tax resident in the UK for the past five years but has not acquired a domicile of choice in the UK and nor is he considered deemed UK domiciled under the 15/20 year rule. Mr X makes a purchase of 50 ETH (the underlying coin on the Ethereum blockchain platform) and the transaction takes place through an offshore exchange using funds from an offshore bank account so that there is no UK nexus to the transaction. A year later, Mr X decides to dispose of his ETH, triggering a substantial gain and Mr X subsequently transfers the sale funds from the exchange to an offshore bank account. In such circumstances, as Mr X is UK tax resident as the time of the disposal he will have made a remittance of the 50 ETH and the gain will be subject to CGT in the UK irrespective of the offshore element and the applicability of the remittance basis of taxation.

What about succession planning and trusts?

This is where the complication really begins to add up. Focusing on lifetime trusts and the relevant property regime (effectively UK trusts with non-excluded property), an individual (the settlor) is liable to a UK inheritance tax (IHT) entry charge of 20% when assets go into the trust, to the extent that the value of the assets exceeds the settlor’s available nil rate band (currently £325,000). If the value of the assets falls below the available nil rate band, it follows that there is no immediate charge to IHT.

The transfer into trust may also trigger a gain for CGT purposes when the cryptoassets are settled on trust, as the transfer is treated as a disposal. In this scenario, it may be possible to claim hold-over relief. This relief has the effect of deferring CGT whereby the base cost will be the original acquisition cost and this is used when calculating the CGT due on a subsequent distribution from the trust. The relief is not obtained automatically but is instead claimed by the trustees and the recipient of the asset and notified to HMRC following certain formalities.

The availability of the nil rate band to mitigate IHT and hold-over relief to defer CGT are all well and good, but there is one major stumbling block – valuation. Using residential property as an example, the market for bricks and mortar is steady and stable, and a valuation three days before a transfer into trust is unlikely to change when the transfer is effect. With publicly listed shares, the market opens and closes at fixed times (closed over weekends and Bank Holidays) and so a valuation at market close is not a complex scientific endeavour. With cryptocurrency, the challenges are far greater. For starters, the market never closes as there is no centrally located exchange. To make matters worse, the crypto market remains extremely volatile and a so-called well-performing cryptoasset could swing 10% up or 10% down in one day – perhaps even as much within a single hour at midnight when UK taxpayers are asleep!

How, therefore, is the value of cryptoassets determined for the purposes of creating or even dismantling trusts? The same issues arise with Will trusts. If, say, the testator creates a discretionary trust for the benefit of his children on death, do we look at the very minute of death to determine the value of the cryptoassets going into trust? Many questions remain and it is beyond doubt that HMRC will be thinking of ways to claw as much tax as possible, however difficult it may be to value these assets.

Practical considerations for Cryptoassets 

In an increasingly digitised world, passwords are practically as valuable as the assets that they protect. Cryptoassets are now commonly stored in a digital wallet, which can be stored online or on external hard drives. Storage and security are clearly of paramount importance to the crypto world. The major takeaway from this is that cryptoassets are only valuable if you have the key to access them. If an individual owning £1 million of Bitcoin does not share the password and provide access to his intended beneficiaries of his estate, the estate would be treated as if it never owned the Bitcoin and the beneficiaries would never receive the benefit. The Bitcoin would be irretrievably lost and no value could ever be obtained. Of course, this would mean that the Bitcoins cannot attract IHT on death as the value has been lost. This is arguably one of those circumstances where a substantial IHT bill would be very well received.

Take the example of James Howells from Newport, Wales. Mr Howells owned 7,500 Bitcoins on an external hard drive, which he accidentally threw away in 2013 when cryptocurrency was worthless by today’s standards. On today’s prices, this crypto holding would be worth somewhere in the region of £300 million and unless the hard drive can be extracted from landfill and the data recovered, that value will be forever lost.

For this reason, it is essential that clients consider leaving a confidential side letter to the executors and trustees of their estate setting out their passwords and any other relevant information relating to access of valuable data and cryptoassets. Of course, this document will have to be kept under lock and key, given its implicit value, with access to it only shared with only the most intimate family members.

Our specialist tax advisers at OGR Stock Denton will be well placed to guide you through the tax regime relating to cryptoassets and would be delighted to advise further. 

If you would like to discuss any of the above issues, please contact Ben Rosen, on 020 8349 0321 or by email

Please note that this blog is intended for information purposes only and does not constitute legal advice. 

Understanding Testamentary Capacity

The number of Wills being challenged over the past decade has risen consistently, and it is easy to see why.  The stakes are much higher given the increase in house prices, meaning that many peoples assets are now worth hundreds of thousands (if not millions) of pounds. Furthermore, the younger generation are struggling to get on the housing ladder, and are increasingly reliant and / or expecting to receive an inheritance to do so. At this point, you may be wondering what Will disputes have to do with testamentary capacity. The the answer is that if a Will is not entered into with full understanding, it may be challenged and be declared invalid. 

What is testamentary capacity, and how is it established?

The word ‘testamentary’, in this case, refers to the act of bequeathing through a Will.  ‘Capacity’ refers to the cognitive ability of the testator (the person making the Will) to enter into the Will in a way that they fully understand.  Hence if a Will is entered into by a person who lacks the mental capacity to comprehend the implications of what is being stated, this would be considered to be a lack of testamentary capacity and will likely render the Will invalid. 

If the last Will is declared invalid the estate will be administered under the terms of the previous Will (if one exists) or under the rules of intestacy. This is a formula sued to distribute an estate if there is no will.  

Solicitors and other legal practitioners specialising in Wills must check that they are satisfied someone has testamentary capacity when taking instructions for a Will for a client. By doing so, its validity is less likely to be challenged following death. 

The risk with online and DIY Wills is that, in addition to the lack of professional legal guidance to ensure the Will is drafted to reflect all of the necessary provisions and life scenarios for your situation, it will lack evidence that checks were undertaken to verify capacity.  A professional Wills Solicitor will go out of their way to secure the proof needed, including requesting contemporaneous medical opinion, asking a medical professional to witness the Will, and attaching any other proof of capacity to the Will.

There are two main tests used by the Courts to prove testamentary capacity:

Banks v Goodfellow Test (Case law test)

 This common law test relates to the case of Banks v Goodfellow (1870), which used the following criteria to test for the existence of testamentary capacity:

  • The testator must understand the nature of making a will and its effects.
  • The testator must understand the extent of the property of which they are disposing.
  • The testator must be able to understand and appreciate the claims to which they ought to give effect (i.e. who can bring a claim against the Will).
  • The testator must have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of his property by Will.

Despite being over 150 years old, the Banks v Goodfellow test has stood the test of time due to its clarity, the fact it is based on case law principles going back three centuries, and because it covers the elements necessary to establish an all-round understanding of what is being entered into.

The Mental Capacity Act 2005 (MCA 2005)

 The MCA statutory test uses five core principles to establish mental capacity, as follows:

  1. A presumption of capacity – everyone has the right to make his or her own decisions and must be assumed to have capacity unless proved otherwise
  2. The right for individuals to be supported to make their own decisions – people should be given the necessary assistance before it can be concluded they are unable to make their own decisions
  3. Individuals have the right to make what might be seen as eccentric or unwise decisions
  4. Best interests – anything done for or on behalf of people without capacity must be in their best interests; and
  5. Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.

The MCA 2005 test for capacity was not intended to replace the Banks v Goodfellow test; rather the intention was to allow judges to make their own decision as to which would be most applicable.  However, the High Court case of James v James and others [2018], confirmed that the Banks v Goodfellow test should be applied when assessing mental capacity in relation to making a Will.

Ensuring testamentary capacity for your Will

Establishing testamentary capacity at the time of Will creation will mitigate the potential for it to later challenged.  For solicitors, ensuring their client understands what they are entering into and providing supporting evidence where necessary is a paramount consideration.  By failing to undertake this key step, a well-drafted Will, with all elements considered, witnessed, and signed correctly, could be rendered useless via a challenge.  Don’t cut corners and allow your Will to be judged invalid due to concerns over capacity – your loved ones deserve certainty that your wishes were made with sound mind and judgment.

If you would like to discuss any of the above issues, please contact Ian Pearl, on 020 8349 5506 or by email

Please note that this blog is intended for information purposes only and does not constitute legal advice.