Wills & Trusts Law Reports | Autumn 2017 #169JKS and her late husband had two sons, ADS and DSM. She brought proceedings against the former in August 2012 seeking relief in respect of (a) a transfer by her late husband to ADS of his parents’ matrimonial home (at which she and her late husband continued to live) and (b) a transfer by her late husband to ADS and his wife of a piece of land adjoining other property. Serious allegations were made by JKS, including allegations of undue influence by ADS. On the death of JKS’s husband a significant sum of inheritance tax was due in respect of the reservation of benefit in the matrimonial ...
Huw Miles looks at issues arising and procedure when a client may lack capacity to conduct financial proceedings ‘Capacity is both specific to every particular issue and every instant in time: it can even be person specific, so that what seems a simple concept can quickly develop into something else entirely.’ Liberty is a fundamental …
Continue reading "Capacity: Hard decisions"
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Wills & Trusts Law Reports | July/August 2014 #141This was an application by a local authority property and affairs deputy seeking a direction whether to authorise a gift MS wished to make. MS was a member of the Church of Latter Day Saints (the church) and wished to donate £6,832 to the church as a tithe. This sum represented 10% of a recent inheritance. RS was MS’s mother and strongly opposed to the donation. MS made his own application seeking declarations that he had capacity to litigate, capacity to make a tithe, capacity to manage his own property and affairs and capacity to execute a LPA for property and affairs.
MS...
Jim Tindal summarises mental capacity, CPR 21 and Dunhill v Burgin [2014] ‘The issue at the heart of Dunhill was: what “claim” must the claimant have capacity to commence? The claim which it was wrongly believed at the time the claimant had, or the (much bigger) claim they in fact had unknown to anyone at …
Continue reading "Capacity: When does a settlement settle nothing?"
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Deirdre Goodwin provides analysis and considers the effect of a finding of incapacity to conduct proceedings upon the status of settlements not approved under CPR r21 ‘The re-assertion of the principle that an apparently fully informed and properly advised settlement will be treated as void if a claimant is retrospectively considered to be a protected …
Continue reading "Capacity: Test of capacity to conduct proceedings"
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Araba Taylor considers the affairs of the incapacitated in the first of two articles The test of the mental capacity of a litigant either to bring litigation or to commence civil proceedings, without the need for a litigation friend, depends on the specific transaction involved. Clients without capacity present client care issues for all practitioners, …
Continue reading "Client Care: Clients without capacity – taking instructions"
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Deirdre Goodwin considers when neurological advice should be sought Where a person sought to rely on an unsoundness of mind, he had to show that such incapacity had been known to his opponent. The recent case of Dunhill v Burgin highlights the risks of settling cases where the claimant lacks capacity and a litigation friend …
Continue reading "Capacity: Masterman-Lister and Bailey v Warren revisited"
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