Denzil Lush makes the case for the return of substituted judgment ‘Exercising substituted judgment – whereby I sought to stand in the testator‘s shoes and authorise the execution of the will that they would make, if they had testamentary capacity – seemed a more realistic, relevant and reverential process than my experiences under the Mental …
Continue reading "Statutory wills: Standing in the testator‘s shoes"
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Wills & Trusts Law Reports | Winter 2018 #170The respondent, who had a history of mental health problems, made a lasting power of attorney (‘LPA’) for property and financial affairs on 1 April 2014 appointing as attorneys her mother and her two daughters, the latter of whom were the applicants. It was then registered by the Office of the Public Guardian. On 25 September 2015 the respondent executed a deed, which had been prepared by a solicitor whom she had not previously instructed, revoking the LPA. Its registration was subsequently cancelled by the Office of the Public Guardian. On 4 December 2015 the applicants made an applicat...
Iain Managhan examines recent case law on the capacity test to revoke a lasting power of attorney ‘Although the respondent was capable of understanding the information relevant to the decision to revoke the lasting power of attorney (LPA), and was able to retain this information and communicate her decision, she was not able to use …
Continue reading "Mental Capacity Act 2005: A balancing act"
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Ruth Hughes explores the notion of ‘doing the right thing’ in a will ‘In the absence of evidence to the contrary the court was entitled to assume that P would want to put their affairs in order by making a will and that they would want to do the right thing and not leave their …
Continue reading "Wills: The prodigal daughter?"
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Wills & Trusts Law Reports | May 2016 #159Mr Jones suffered from dementia and lacked testamentary capacity and capacity to make significant lifetime gifts. He had an estate of approximately £2.3m and was intestate. The effect of his dying intestate would be that, following the statutory legacy of £250,000 plus personal chattels to his wife, Mrs Jones, outright, Mrs Jones would receive half of the remainder of the estate absolutely and his daughter from a previous relationship, Ms Dawson, would receive the other half of the estate.
Ms Dawson’s mother and Mr Jones had separated when she was a child whereupon Ms Dawson...
Sharon Kenchington finds that NT v FS sets out useful guiding principles on determining ‘best interests’, in a rare reported case ‘Any decision made on behalf of the individual for whom the statutory will is being made must be in their best interests. It is important to recognise that this is not the same as …
Continue reading "Statutory Wills: A delicate exercise"
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Wills & Trusts Law Reports | June 2013 #130F is a 74-year-old retired rugby player with assets of £3m and was diagnosed with Alzheimer’s and dementia in 2006. The applicant (NT), who is F’s deputy, brought this application for a statutory will to be executed on behalf of F and for a statutory gift of £50,000 to be made to F’s 95-year-old mother (T). The respondents were the potential beneficiaries of such will. The statutory gift was uncontroversial, however the statutory will provisions were contested. Judge Behrens, in determining what terms would be in F’s best interests, had regard to previous authorit...
Michael O’Sullivan reviews the case of Re JC [2012], which clarifies the current position with statutory wills and adoption The effect in law of an adoption is that the adopted child ceases to be regarded as the child of their natural parents and becomes, in the eyes of the law, the child of the adopters. …
Continue reading "Statutory Wills: Objective and fair?"
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Wills & Trusts Law Reports | September 2012 #122JC had four biological children: A, B, C and D. A was born in 1942 to a 15-year old mother. He was subsequently fostered, but throughout his life always understood JC to be his father and in the forty years preceding trial had worked and been in regular contact with him. JC denied parentage of A, but paternity was conclusively established by a court authorised DNA test. B and C were born in wedlock, in 1953 and 1955 respectively. However, they first had contact with their father in or around 2006/7. Their relationships remained strained, C in particular refusing to attend the hearing as ...
Wills & Trusts Law Reports | April 2012 #118In 2001 the patient, J, received a settlement of £2,090,000 damages in respect of cerebral palsy suffered as a result of complications at the time of his birth in 1991. Of this, £1,611,222 was attributable to his future care needs. J is an only child. His father was born in 1959 and his mother in 1962. He lives with them in a house bought in October 2000 for £349,950 from an interim payment that is held by his parents and Mr Smyth (S), his receiver (now the deputy) as his trustees. Its current value is estimated at £675,000. J’s life expectancy was originally assessed in 1998 as la...
