Case digest
Joseph Goldsmith on how Re MN [2010] EWHC 1926 (Fam) gives useful guidance to English courts on cross-border cases involving adults that lack capacity

On the clock
Is time up for the billable hour? David Coldrick considers whether time recording is a viable charging structure for law firms. In last month’s column I set out my reservations about time recording as the basis for billing clients. I suggested that it does not really work for the law firm, it does not work for the client, and it will not stand up to the challenge of alternative charging methodologies spurred into existence by increased competition. This month I take a look at the background to the billable hour and some of the arguments used to defend it.

In search of beneficiaries...
Fraser & Fraser’s Kasia Oberc reveals how a recent case underlined the complexities of family relationships.
An instruction to locate the three missing children of a deceased lady the solicitors had been acting for under an Enduring Power of Attorney meant the unenviable task of informing children that their mother had passed away. However, we needed to find them first.

Cutting corners
The dark clouds of the financial crisis are gradually clearing, but they leave in their wake a more sombre atmosphere of increased frugality. Public spending cuts imposed by the government are in the process of being rolled out and, while in some cases their impact will not be immediate, the long-term implications could be seismic.

In-brief
Charities set to benefit from 50 per cent tax rate; Appeal judges reject attempt to rewrite rules on testamentary capacity; and will writing moves closer to regulation in England

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.