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...

Capacity: Maturity test

The Open University | Family Law Journal | October 2014 #140
In the first of a two-part analysis, Debbie Stringer examines how the courts approach Gillick competence in relation to a child’s capacity ‘Where a court has to make a decision where the rights of the child and the rights of the parents conflict, the child’s rights must be the paramount consideration.’ In two recent judgments …

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Capacity: Size matters

Womble Bond Dickinson | Trusts and Estates Law & Tax Journal | October 2014 #160
Jonathan Grogan sets out the current position on gifts from deputies and attorneys to themselves ‘While an attorney who is related to or connected with a person who lacks mental capacity is allowed to make gifts to themselves on customary occasions, a deputy would always need to seek Court of Protection approval for any gifts …

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Capacity: When does a settlement settle nothing?

St Philips Chambers | Personal Injury Law Journal | May 2014 #125
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 …

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Capacity: Test of capacity to conduct proceedings

7 Bedford Row | Personal Injury Law Journal | April 2014 #124
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 …

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Capacity: Quality of evidence

Boodle Hatfield LLP | Trusts and Estates Law & Tax Journal | December 2013 #152
Williams v Wilmot indicates key factors the court will take into account when considering lack of capacity. Sharon Kenchington explains ‘A token medical report from a doctor who has only met the deceased in order to produce a report on their capacity is unlikely to be persuasive if there is detailed evidence to the contrary …

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Williams v Wilmot [2012] EWHC 2211 (Ch)

Wills & Trusts Law Reports | September 2013 #132

The claimant sought probate of a will of Dr Cecil Monk (the deceased) dated 5 December 2003 by which the deceased left his entire estate to the claimant. The claimant also sought, in so far as it was necessary, an order that the deceased’s later will of 19 January 2007 be pronounced against on grounds of a lack of testamentary capacity and/or a lack of knowledge and approval.

The defendant, who did not appear and was not represented, was formerly engaged in caring for the deceased. He was an employee of a care agency to whom the relevant local authority had contracted out the care...

Schrader v Schrader [2013] EWHC 466 (Ch)

Wills & Trusts Law Reports | May 2013 #129

Jessica Schrader (the testatrix) died a widow aged 98. The testatrix’s two sons, the claimant (Nick) and the defendant (Bill), survived her.

By a will dated 1 October 1990 (the 1990 will), drafted by a firm of solicitors, the testatrix had made specific gifts of shares and savings bonds to her grandchildren and thereafter left her residue (on her husband having predeceased) to Nick and Bill in equal shares absolutely.

However, in or about May 2005, the testatrix suffered a fall and Nick moved into the testatrix’s property to act as her carer. On 12 April 2006, a further wil...

Capacity: Masterman-Lister and Bailey v Warren revisited

13 King’s Bench Walk | Personal Injury Law Journal | February 2013 #112
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 …

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Crafer v Jesshope

Wills & Trusts Law Reports | June 2012 #120

The application concerned a rift within the Jesshope/Crafer family. Mrs Edith Jesshope, aged 89, was the respondent. Mr Hubert Jesshope, aged 90, had been married to Mrs Jesshope for 65 years. Mrs Jesshope was the mother of Graham and Susan. The applicant was Susan’s husband, Mr Ian Crafer.

In mid-2008, Mr Jesshope took steps to require Graham to move out of the long time family house in Esher owned by Mr and Mrs Jesshope. Mrs Jesshope asserted a wish to live with Graham instead of Mr Jesshope. A rift emerged between Mrs Jesshope and Graham on one side (liviing in the Esher ...