Mackay v Wesley WTLR(w) 2021-03

Wills & Trusts Law Reports | Web Only

Court Of Protection: Best interests

Howard Smith summarises the position on the bestowing of gifts and other benefits when a person lacks capacity ‘In each case the deputy or the attorney must decide whether the size of any proposed gift is reasonable given the occasion on which the gift is made and the size of the estate.’ In cases where …
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Deathbed Gifts: At a crossroads

Adam Carvalho and Alice Kendle explore the slippery and amphibious doctrine of donatio mortis causa ‘Unless the donor revokes the gift before death, when the donor dies their personal representative holds the property on trust for the donee.’ The case of King v The Chiltern Dog Rescue [2015] (King) has clarified – and restricted – …
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Kicks v Leigh [2014] EWHC 3926 (Ch)

Wills & Trusts Law Reports | May 2015 #149

Joyce Smith (Mrs Smith) lived at 49 Home Close, Wolvercote, Oxford (property). She had two daughters, the late Norma Kicks who died in January 2004, and the defendant. After her daughter’s death, Mrs Smith changed her will (will) in February 2008 and gave her entire net estate to the defendant, whom she had appointed sole executrix and trustee, to hold as to 50% for the defendant and 50% equally between Mrs Smith’s four grandchildren. The claimants were the two children of the late Norma Kicks. Mrs Smith’s health began to decline from November 2008. The defendant and her husband, who liv...

LPAs: Unfair care?

Justin Holmes examines Re OB, The Public Guardian v AW, which sheds light on when LPA attorneys can and cannot use their principal’s funds to improve their own properties ‘Disconnection between the expectations of family members on the one hand, and the law of undue influence on the other, is a fertile source of litigation …
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Testamentary Capacity: Banking on Banks v Goodfellow

Walker v Badmin has clarified the correct test for testamentary capacity. Araba Taylor explains ‘The clarity offered by the Walker judgment is very welcome, given the conflict between earlier first instance decisions and what the judge described as the “rather ambivalent view” in the textbooks.’ It is now settled: the test for testamentary capacity in …
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Re OB, The Public Guardian v AW & anr Neutral citation: [2014] EWCOP 28

Wills & Trusts Law Reports | December 2014 #145

OB, who was born in 1916, was a widow with two adult children, AW and DH. She lived in her own home until February 2007 and thereafter with AW. On 15 September 2008, OB executed a lasting power of attorney (LPA) for property affairs, appointing AW and DH jointly and severally as her attorneys. OB’s property was sold on 15 June 2010 and realised net proceeds of £376,200. The LPA was registered by the Office of the Public Guardian (OPG) on 4 March 2011. Subsequently, DH expressed concerns that long standing ‘pocket money’ payments by OB to her grandchildren had been stopp...

A County Council v MS & anr 11413486

Wills & Trusts Law Reports | July/August 2014 #141

This 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.


The Vegetarian Society v Scott [2013] EWHC 4097 (Ch)

Wills & Trusts Law Reports | April 2014 #138

This was a contentious probate action against all five of the wills of a schizophrenic testator. While he had benefitted from a stable and conventional childhood, the deceased had sustained serious injuries at the age of nineteen in a serious bicycle accident. He soon after succumbed to the symptoms of severe schizophrenia and logical thought disorder, from which he suffered for the remainder of his lifetime. His modes of living were unconventional. He lived alone on the fringes of society, and despite his considerable wealth, he lived in basic, if not squalid conditions. While it was ac...

Client Care: Clients without capacity – taking instructions

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, …
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