Interesting article in the Law Society Gazette on online estate fraud.

Fraudsters are increasingly targeting the estates of the deceased for valuable internet hosted assets such as online bank accounts.  The problem is that a Will becomes a public document when you seek confirmation.   A similar procedure applies in England & Wales.

The solution is stay “low tech”.  For example leave a note of your online account details  in a sealed envelope which can be kept by your solicitor alongside your Will.

The article can be found here.

A recent article on how one in ten of Britons have or intend to include their website passwords can also be found here.

Always a bit worrying when both sides rush to claim victory.

The view of the Charity Commission of England & Wales can be found here.

The view of the Independent Schools Council can be found here.

The Upper Tax Tribunal ruled that private fee-paying schools can qualify as charities if their trustees offer poor students more than “token” help with fees.

The lack of clarity by the Tribunal and the reaction of each side shows that this is not the end of the matter.

A similar debate is taking place in Scotland between the Office of the Scottish Charity Regulator and the Scottish Council of Independent Schools.

Once in a while politicians do something that is without question the right thing to do.  This is one such case.

More than 3,500 adult carers and young carers from across Scotland are set to benefit from a funding package for short breaks.

Fifty-eight organisations have been offered a share of almost £954,000 for a variety of short breaks projects. This includes 14 groups who help carers purchase their own breaks.

The funding will support young carers and adult carers who care for disabled children, people with dementia, mental health problems and other long-term conditions, substance misuse problems, adults with learning disabilities and adults with physical disabilities.

More information can be found here.

Excellent article in the Law Gazette on the withdrawal of medical treatment.   The article refers to the recent case in which the Court of Protection in England ruled against the withdrawal of medical treatment.  In that case the person was in what is termed a “minimally conscious state” and not a “vegetative state” as in previous cases.

The article can be found here.   The case report can be found here.

The OPG has put updated Inventory & Management Plan Forms on its website.

The updated forms can be found here.

The Scottish Government has published its proposals for a new national mental health strategy.   The poposals seek to improve mental health services and in particular the Scottish Government are looking for views on the direction of travel for the next 4 years.

The consultation can be found here.

Glad to see that the Scottish Government are prioritising the integration of our health and care services as recommended by the Christie Commission.

This is from the Scottish Government’s response to the Christie Commission:

“Renewing Adult Health & Social Care

The Scottish Government is committed to the introduction of an integrated system of health and social care to ensure that older people continue to receive the care, compassion, support and dignity they need and deserve.

Strong evidence suggests that better outcomes for people, better use of resources (money and people’s time) and better experience of care and support can all flow from services that are planned and delivered in an effectively integrated way.

Over the next 20 years demography alone could increase expenditure on health and social care by 70 per cent. Reform is necessary to help address this unprecedented challenge.”

The paper “Renewing Scotland’s Public Services – Priorities for reform in response to the Christie Commission” can be found here.  Watch out for the “public sector speak”.

The Borders first crematorium will begin operations by the end of this year.  The crematorium will be located next to Wairds cemetery just outside Melrose and in the shadow of the Eildon Hills.  A picture perfect postcard location.

The good news does not end there.  Work has started work on a second crematorium at Houndwood Church in Berwickshire.

The facility at Wairds will be run by Westerleigh, the UK’s second largest crematorium operator, and costs approximately £2.6 million.  The building will contain an 84 seat chapel with standing room for 100 outside.   The expected annual number of cremations is 500.  It is estimated that this will rise to 900 within 10 years of operation.

Why might you ask is this such good news.  The answer is a simple one.  Until now if you live in the Borders and you wanted to be cremated your family, friends and colleagues had to travel to either Edinburgh or Newcastle.  A journey that was often long and stressful and in the winter might not even be possible.  I suspect that this is an issue that affects many other communities in Scotland.

I am originally from Galashiels and still split my time between the Borders and Edinburgh.   The main road to Edinburgh is the A7.  A road that is best described as bendy with few overtaking opportunities, congested during the main commuting times and in the winter hazardous.  So little has changed that my great grandparents, if still alive, would have little trouble recognising this road today.

It is often the case that after a church service in Galashiels the body is taken to Mortonhall crematorium in Edinburgh.  Those attending the crematorium would then have to head back to Galashiels.  As is likely to be case the family will have invited everyone to a venue in Galashiels for a cup of tea, sometimes something a little stronger, and a bite to eat.  This is also a chance to pay your respects to the family.  That often meant a round trip of 80 miles and having to take a full day off work.  The opening of these crematoria will, for large numbers of people, mean not having to make journeys such as this.

As we know a time of bereavement is a difficult enough time without having added a stressful journey.  That is why this is such good news for the Borders and why I would like to note my thanks to all those who made this happen.

This article was published in the latest edition of Age Scotland’s quarterly magazine, Advantage.

Mrs SC for Judicial Review of a decision of the Service Personnel and Veterans Agency of the Ministry of Defence  Outer House, Court of Session, [2011] CSOH 124

The background to this case is a family dispute.  In this case the dispute is over where the body of Private Mark Connolly (MC) will be buried.   MC’s mother wishes to have him buried in Methil.  His widow wishes him to be buried in Forfar.

The petitioner in this matter is the widow of MC.  MC died on 14 May 2011 whilst on a training course in Germany.   MC named his mother and brother as his executors in his will.  MC’s widow is the sole beneficiary.

It appears that the MOD initially wished to release MC’s body to MC’s widow.  It was only when MC’s mother disputed the funeral arrangements, and after looking at MC’s will, that the MOD indicated that they would now release the body to MC’s mother.   At that point the Forfar funeral arrangements were almost complete.

MC’s widow maintained that although MC did not leave written instructions regarding his funeral he made his wishes known to her.   MC told her that he wished to be buried but not in Methil.  He wished to be buried wherever he and his wife were settled.   They had settled in Forfar.

The MOD indicated its change of mind in a letter to MC’s widow dated 6 June 2011.  It is respect of this letter that MC’s widow sought judicial review.

 Lord Brodie began by looking at the issue of competency. 

“Critically, nothing in the letter of 6 June 2011 affects the rights or interests of anyone and indeed it does not purport to do so.  It neither constitutes nor expresses a decision.  All that there is in the letter is a statement of intention to transfer custody of the body to the other party that the writer of the letter understands is entitled to its custody as a matter of law.  Whether or not that understanding is correct, neither the writing of the letter nor the implement of the intention expressed in any way alters parties’ respective rights or interests.  Were it to be the case that the petitioner is entitled as a matter of law to demand custody of the body, neither the letter nor a transfer to the second respondent in implement of the intention expressed in the letter would affect that.  Put shortly, in my opinion there is nothing here to judicially review.  I recognise that in similar circumstances in England that courts may take an approach to applications for judicial review which is more pragmatic and closer to what parties would have wished me to do here …, but the nature of the equivalent English jurisdiction is different from that in Scotland.”

Although Lord Brodie decided to dismiss the petition as incompetent he decided to address the petitioner’s claim that the decision of the MOD contravenes her rights under article 8 of the European Convention of Human Rights.  Indeed Lord Brodie went as far as to say that: “I may be wrong on my conclusion as to competency.”

Article 8 claim

Article 8 of the Convention provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

MC’s widow contends that her article 8.1 rights are engaged because the decision of which she complains deprives her of the opportunity of taking custody of her husband’s body, arranging his funeral and determining where he is interred.

Lord Brodie split his analysis into three parts.  (1) Whether there had been interference with the petitioner’s rights under article 8.1, (2) whether any interference was according to law and (3) whether such interference was justified by any of the other provisions of article 8.2

Interference

On the question of whether there had been interference, Lord Brodie proceeded “upon the basis that transfer of the deceased’s body would amount to an interference with [MC's widow's] article 8.1 right to respect for family life.”

According to law

Lord Brodie then discussed what he thought was the position under both English and Scots law.

Under English law the executor has priority when it comes to funeral arrangements but that this right may be restricted by the courts.   Lord Brodie noted that there is no direct authority on this point under Scots law.

The case of Evans v McIntyre was though discussed and Lord Brodie noted  some of Sheriff Scott’s comments in that case:

“On the basis of the authorities to which I was referred and the submissions I heard, I would see that there is no question but that a confirmed executor or someone who entitled to be confirmed as an executor and who intends to seek confirmation (the prospective executor) is a lawful custodier of the body of a deceased for the purpose of burial.”

Lord Brodie, however, did not feel “that matters are as cut-and-dried” as in Evans and noted:

“The fact that he [the executor] pays does not make him responsible for arranging the funeral.  It is the surviving spouse and next of kin (not the executor) who have rights to solatium for unauthorised interference with the dead body.”

“Thus, in Scots law, I would see near relatives as well as the executor or prospective executor as having rights and interests in respect of the body of the deceased.  The nature of these rights is not the same.”

“Determining what are appropriate funeral arrangements by reference to the quality of relationships within a family appears to me a task for which the court is quite unsuited.”

The “intends to seek confirmation” comment from the Evans case, see above, is also important as interestingly Lord Brodie was not certain that MC’s mother would be appointed as executor due to her answer to his question on her being confirmed as executor.  MC’s mother said she would take legal advice before deciding.

Other provisions of Article 8.2

“To respect the rights of both the [the MOD] cannot avoid favouring one.“  Lord Brodie felt that the MOD were in an impossible position and that its actions were justified under Article 8.2.

In summing up Lord Brodie said:

“The first respondent [the MOD] may therefore lawfully transfer the body of the deceased to the second respondent [MC’s mother] but he may also lawfully transfer the body to the petitioner [MC’s widow].  Nothing in this decision should be construed as an expression of preference of my part of the position of the second respondent [MC’s mother] over that of the petitioner [MC’s widow].”

Conclusion

Although Lord Brodie held the petition to be incompetent he helpfully continued with his analysis of the matter.  Lord Brodie saw that the MOD were in an almost impossible position here.  Whatever it did the other party would feel aggrieved.

One final point.  I was surprised that more was not made on the fact that MC did not appoint his widow as an executor because of erroneous advice from the army.  The army it was claimed had told MC that it was not appropriate to appoint the same person as executor and beneficiary.

The full case report can be found here.

Given the amount of coverage this Bill receives on the various news outlets you might be excused for thinking that this Bill applied to Scotland as well.  It does not.  That said, it is still of interest and relevance to us here in Scotland as it shows the way that the debate is moving in other parts of the UK.

The Bill passed its third reading in the House of Commons last week and is due to move to the Lords in October.

These articles, firstly from the BBC and also from the Guardian, outline the main points of debate including within the UK coalition government.

The Bill and a summary of the key points can also be found here.