Goodbye Darling, hello Dave!
Alistair Darling’s recent budget was not as generous as it seemed, says Pauline Platt. With the outcome of a general election just decided, the issue of inheritance tax has been in something of a state of flux for some time. Former Chancellor Alistair Darling announced in the recent budget that the nil-rate band, or tax threshold, would be frozen for the next four years.

News: Appeal judges reject attempt to rewrite rules on testamentary capacity
The Court of Appeal has unanimously rejected a legal challenge which attempted to unravel one of the oldest principles of probate law. Ever since Parker v Felgate in 1883, English courts have held that although a testator needs testamentary capacity when instructing a solicitor to draft a will, it is not required at the time of execution.

In-brief
News headlines from June, including:
Mentally ill woman was “in actual occupation” of house she had to leave
Fladgate Fielder fails to strike out negligence action
Lawyers march for charity

The little boy lost
Kasia A Oberc continues the search for missing beneficiaries.
No two cases are ever alike with genealogical research, although sometimes the sheer volume of them blends the work together. Nevertheless, occasionally you become aware that the information some people will be receiving is so spectacular that you cannot help but want to protect them from further pain.
One such case currently being finalised is the estate of Barbara Margaret Jones. Our instructions were that, prior to her death, Barbara had owned a property in the south-east but that a petition for bankruptcy had been made against her. We were to find any next of kin who would be entitled to the remainder.

Case digest
Joseph Goldsmith discusses the implications of Royal Society for the Prevention of Cruelty to Animals v. Sharp [2010] EWHC 268 (Ch.)

Editor's note
Just prior to the victory that he didn’t quite manage to secure, new British PM David Cameron pledged that, if successful, his Conservative party would be on hand to help “the frail, the elderly, the vulnerable, poorest” in his new vision of a ‘Big Society’. It would be a government that would “take everyone with us”, he declared.
With the government we have actually got, of course, aside from debt reduction, it is even more difficult than usual to predict precisely what will prove to be the key priorities of the next five years. The Conservatives and Liberal Democrats have had to trade manifesto pledges like so many monopoly cards, assiduously assembling an optimum hand for the long game.

From Russia with love
As lawyers we are now anticipating a move towards a regulatory structure somewhat akin to that provided by the FSA for financial advisers – a so-called ‘principles-based’ system. For those of us who once hoped this might represent a return to past simplicities, I think we shall be disillusioned; a quick look at FSA rules is instructive. And of course, given recent events we might be forgiven for thinking deeply about the efficacy of such systems.

In search of beneficiaries...
The perils of an invalid will are one of the most potent arguments solicitors have in the battle against homemade wills and cut price will-makers. However, sometimes it isn’t the complications of the content that cause the headaches. In one recent case Fraser & Fraser faced, the will was well written and thorough. But it was rejected by the Probate Court at the last hurdle – as the witnesses hadn’t both signed both pages.

Scotland to regulate non-lawyer will writers
NON-LAWYER WILL WRITERS in Scotland will now be subject to the same regulation as their legally qualified counterparts after the Scottish parliament approved in June amendments to the Legal Services (Scotland) Bill. The move means that consumers who use non-solicitors to draft their wills are entitled to the same recompense as those that opt for traditional lawyers should things go wrong.

Sex change woman wins pension battle
The court of appeal at the end of June ruled that a woman who had a sex-change operation 10 years ago can receive a pension from the age of 60, overturning a previous judgment from the Department of Works and Pensions (DWP).

The DWP had said last March that Christine Timbrell, who was born a man but underwent gender reassignment surgery in 2000, could not receive a pension until the age of 65 as she was still married to her wife. Under the 2004 Gender Recognition Act (GRA), the new sex of married transsexuals is only recognised by law if their marriages are annulled or dissolved.

Right-to-die doctor escapes prosecution
Director of public prosecutions (DPP) Keir Starmer ruled at the end of June that it was “not in the public interest” to continue with legal action against former GP Michael Irwin for his role in the assisted suicide of cancer sufferer Raymond Cutkelvin. Right-to-die campaigner Dr Irwin claims to have taken three people to Zurich-based euthanasia clinic Dignitas and admitted to contributing £1,500 to Cutkelvin’s procedure.

Time travel for lawyers - Coldrick's comments
The introduction of ABS is a mega change. It will affect everyone. It does not just apply to every other solicitor or every other law firm. It applies to the vast bulk of the private client market as much as to the mainstream personal injury and other “commoditised” markets, which we have already seen eroded by third-party market entrants. If there is perceived to be a decent profit margin within the law, as there is, then there will be increased competition until the market stabilises. That is basic economics. It is how the real world of business works. It is not how the legal services market has operated up until now. It is presently impossible for outsiders to make money from “proper” law firms doing the stuff proper law firms do.

Case digest
The case of Re Key is novel in that it seems to be the first reported decision on the effect of bereavement on testamentary capacity. Furthermore, as Briggs J recognised, it is not one of those cases in which it is possible to point to a conspicuous inability to satisfy one of the distinct limbs of Banks v Goodfellow. Rather than being concerned with cognitive impairment, the case is one in which, on the basis of all the evidence, it was clear that Mr Key was simply unable to exercise the decision-making powers of a testator. To the extent that such a conclusion involves a slight development of the Banks v Goodfellow test, the judge asserted that such a development is necessitated by the greater understanding of the mind now available from modern psychiatric medicine, in particular in relation to affective disorder.

News: ‘Death tax’ back on government agenda
The government has reopened the debate on long-term care for the elderly by putting back on the table the possibility of a “death tax”. Health secretary Andrew Lansley confirmed on 20 July that the controversial proposal to impose a compulsory levy on people’s estates was one of the options that would be considered by the independent health commission, established to examine ways of plugging the black hole in funding for the elderly, which is expected to reach £6bn by 2020.