Private Client Legal Updates - September 2023

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

Tax policy – Autumn Statement 2023

On 5 September, Chancellor Jeremy Hunt announced that the 2023 Autumn Statement will take place on 22 November 2023. This will be accompanied by an Office for Budget Responsibility forecast. Date of 2023 Autumn Statement confirmed as 22 November 2023 | Practical Law (thomsonreuters.com)

Wills – Law Commission consultation

In September 2023, the Law Commission will issue a supplementary consultation paper on reforming the law of Wills. This follows on from the Law Commission Wills review project that was started nearly ten years ago and the consultations issued in 2014 and 2017. Issues considered in the previous consultations included: the formalities for making and executing a Will; the test for testamentary capacity; rules to protect against undue influence; and the introduction of electronic Wills. It is reported that the new consultation will focus on the revocation of Wills by marriage and on electronic Wills. STEP, professional bodies and charities prepare to respond to Law Commission consultation | STEP

Mental capacity – OPG guidance on common LPA errors

On 31 August, the Office of the Public Guardian (OPG) published new guidance on how to avoid errors when completing a Lasting Power of Attorney ("LPA") form. The number of opportunities for error helps to emphasise the importance of taking legal advice on the completion of an LPA. Some of the "common error" points are as follows.

• Using any type of correction fluid or stickers.
• Not using black or blue pen throughout. 
• Not dealing with mistakes correctly - each mistake needs to be struck through, corrected and initialled by the person to whom the mistake relates.
• Execution errors - the sections of the LPA must be completed, signed and dated (as the day of signing) in the correct signing order. 

Avoiding errors when completing a lasting power of attorney form - GOV.UK (www.gov.uk)

Offshore – Register of Overseas Entities

On 4 September, the House of Commons reversed all six amendments to the Economic Crime and Corporate Transparency Bill that were made in the House of Lords, including from a Register of Overseas Entities ("ROE") perspective, the attempts to: require Companies House to publish the names of parties to trusts that own overseas entities on the ROE; require property-owning overseas entities to update the ROE within fourteen days of any changes rather than once a year; and make it a requirement for company shareholders to state whether they are acting as a nominee. The rationale for the amendment concerning trusts is that the ROE already discloses trust information to HMRC, law enforcement and other persons with functions of a public nature as and when necessary. The Bill now goes back to the House of Lords. UK Parliament removes money laundering from new 'failure to prevent' offence | STEP

Contentious estates – executrix permitted to bring negligence claim against deceased's pathologist

In Shaw v Maguire, 2023 EWHC 2155 KB, an executrix has been granted permission to pursue a professional negligence claim against a consultant pathologist who she alleges misdiagnosed cell samples taken from her deceased husband five-and-a-half years before his death from cancer in 2014. The defendant pathologist argued that the claim was statute-barred under the Limitation Act 1980 ("LA 1980") as the deceased should have commenced proceedings by November 2012. The executrix (on behalf of the deceased's dependants) applied to the court to exercise its discretion under s.33 LA 1980 to disapply the relevant limitation period. The defendant argued that the executrix could not ask the court to exercise its s.33 discretion because the deceased had not brought a claim within the time limit in his lifetime. The High Court ruled it would be equitable to allow the action to proceed and directed that LA 1980 should not time-bar the claim. EWHC allows executrix to pursue time-barred negligence claim against pathologist | STEP; PR could ask court to exercise discretion to extend time for bringing Fatal Accidents Act 1976 claim even though deceased was out of time for bringing PI claim (High Court) | Practical Law (thomsonreuters.com)

Contentious Estates – Law Society guidance on disputed Wills

On 5 September, the Law Society published an updated version of its practice note "Disputed wills: guidance for practitioners". The updated note has an expanded section on the risks of acting in disputes where the firm taking on a claim or defending it also drafted the Will or is acting as executor. Some of the updated points are as follows.

• If a Will a firm prepares is disputed, the firm should carefully consider whether it can act in the litigation. The firm should consider whether it can meet the SRA Principles of acting with independence (Principle 3), in the client’s best interests (Principle 7) and in the interests of justice (Principle 1), without an own interest conflict arising. A firm should consider this the outset, so as not to breach Principle 7 by ceasing to act part-way through the retainer.
• Acting in litigation concerning a disputed Will you prepared can give rise to conflicts of interests, such as between the duties you owe to your client and the duties you will owe to the court when giving evidence. You should consider carefully whether you, or your firm, can properly act in those circumstances, with reference to SRA Code of Conduct for Solicitors, RELs and RFLs (paras. 6.1 and 6.2).

Probate – PRs' identity evidence required when transferring land

On 4 September, the Land Registry amended their Practice Guide 67 - Evidence of identity (LRPG 67) in relation to when evidence of PRs' identity is required to register transactions at the Land Registry. Previously, LRPG 67 provided that PRs who assented or transferred land were exempt from the requirement to provide identity evidence. This exemption has now been removed and evidence of identity is required. The Land Registry have explained that the amendment has immediate effect and is a safeguard against fraud. Evidence of identity (PG67) - GOV.UK (www.gov.uk)