Mackay v Wesley WTLR(w) 2021-03

Wills & Trusts Law Reports | Web Only

Capacity: A nuanced approach

Adam Stewart-Wallace outlines lessons from Hinduja on conducting litigation Hinduja v Hinduja [2021] involved the determination of two essentially independent, but independently interesting, applications, one regarding the appointment of the claimant’s daughter as litigation friend (the regularisation application), and the second regarding a privacy application made by the defendants (the privacy application). The court’s treatment …
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Capacity: Importance of the golden rule

Kevin Kennedy and Andrew Walls report on the test in Banks v Goodfellow ‘This judgment provides very significant support that the Banks v Goodfellow test is the sole test for the court to apply when judging testamentary capacity post mortem.‘ The High Court in James v James [2018] has ruled that the test in Banks …
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Watt v ABC [2016] EWHC 2532 (COP)

Wills & Trusts Law Reports | January/February 2017 #166

This was an application to the Court of Protection concerning whether substantial damages awarded to ABC in a personal injury claim should be paid to and administered by ABC’s property and affairs deputy or should be held on revocable trust.

In prior litigation it had been common ground that ABC lacked litigation capacity but his capacity or the extent of his capacity to manage his financial affairs with appropriate support had been in dispute. This dispute was not decided due to the matter being settled. Subsequently a deputy was appointed by the Court of Protection upon th...

LPAs: When will your appointed attorneys in an LPA be allowed to make decisions?

Lucie Sleeman sets out how the Office of the Public Guardian is affected by recent developments in mental capacity law ‘Under the Mental Capacity Act 2005 the Court of Protection exercises statutory jurisdiction over the property and affairs of the mentally incapacitated person but the practical administration and supervision of the person’s affairs are carried …
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Sharp v Hutchins [2015] EWHC 1240 (Ch)

Wills & Trusts Law Reports | September 2015 #152

Mr Butcher was born on 4 October 1939. He lived alone in a bungalow at 42 Russell Road, Enfield, London. He had no surviving parents and no children. He was close to his only sibling, Yvonne Butcher, with whom he lived. She died in 2002. Mr Butcher died on 5 May 2013 aged 73. He left a net estate worth £482,295.00. He was in good physical and mental health at the time of his death.

It was likely that in 1991 Mr Butcher had made a will which left his estate to Yvonne. In 2003, he made a new will following her death (‘the 2003 will’). He did so without the involvement of...

Capacity: The last round?

Martyn Frost sums up the current position on MCA 2005 v Banks v Goodfellow ‘The test from Banks v Goodfellow is, after all, a common law test and as such capable of modification and development by judges as is appropriate to modern circumstances and modern needs.’ It is perhaps a sad reflection that almost ten …
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Capacity: Hard decisions

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 …
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Capacity: Open justice?

In the conclusion to a two-part analysis, Debbie Stringer discusses the more paternalistic approach that may be taken by the courts when considering a child’s capacity ‘Doctors and hospitals do not have, nor can they obtain, parental responsibility – it is for the court to determine whether or not treatment, and what sort of treatment, …
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King v Dubrey & ors [2014] EWCH 2083 (Ch)

Wills & Trusts Law Reports | October 2014 #143

The deceased, June Fairbrother, (D), a retired policewoman, made a will in March 1998 leaving legacies to friends and family, the 3rd to 14th defendants ,the executors and legatees and the residue to the 15th to 21st defendants, animal charities (the charities). In June 2007 D’s nephew, Mr King, the claimant (C) had a conversation with her. She was increasingly elderly and frightened of going into a home, and he agreed to move in with her to look after her. He had spent some time in prison as a result of an offence under the Companies Act and was living in the property of a busi...