Wills & Trusts Law Reports | September 2014 #142AB was a young adult who had suffered a brain injury. She lived with her mother, stepfather and stepbrother. PQ was her father, whose whereabouts were unknown. In the past he had been physically violent and sectioned. AB’s mother had terminated her relationship with PQ and, apart from occasional contact visits, he had not seen his daughter for years. Mother and daughter subsequently moved and established new lives elsewhere. AB was currently intestate and one of her property and affairs’ deputies made an application for the execution of a statutory will to be authorised on he...
Deborah Smithies and Olivia Checa-Dover discuss the Mental Capacity Act 2005 and concerns as to how it is working in practice ‘If people are presumed to have capacity unless the contrary is demonstrated, when should carers (or other potential decision-makers) be embarking upon an assessment exercise?’ As the Mental Capacity Act 2005 (MCA 2005) approaches …
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Wills & Trusts Law Reports | March 2014 #137PO was 88 years of age and lacked capacity to decide where she should live. She had four children, the applicant (JO), and the first, second and third respondents (GO, RO and MP). GO and RO were PO’s attorneys for property and affairs but no power of attorney or deputyship order was extant for welfare decisions.
Until the events giving rise to this application PO was habitually resident in England and Wales, living in her own property in Worcestershire with family and local authority assistance. However, in April 2012, GO moved PO to Scotland, initially to live with him but...
Wills & Trusts Law Reports | January/February 2014 #136John Pearce (Mr Pearce) died on 23 July 2008. His daughter, the claimant, challenged the validity of a will purportedly made by Mr Pearce on 20 June 2007 (the will) on grounds of lack of capacity and want of knowledge and approval, and also challenged a number of lifetime transactions said to be procured by the defendant’s undue influence.
Mr Pearce’s second marriage broke down in 2004 and he consequently became lonely and depressed. His health was generally deteriorating. He suffered from partial kidney failure, which was first noted in March 2005, and by 2006 from s...
Wills & Trusts Law Reports | December 2013 #135The claimant and defendant are the two sons of Mr Igor Tociapski (the deceased), who died on 12 March 2010 and had made a will dated 20 June 2007 and a later will dated 13 May 2009 (the 2009 will). The 2007 will shared the estate between the two sons. The 2009 will gave the entire estate to the defendant. By a transfer dated 12 February 2010 (the transfer), the deceased gave to the defendant a property known as Hillcrest Cottage, in Northamptonshire.
The claimant sought to set aside the 2009 will on the grounds that the deceased did not know and approve its contents alternatively...
Sharon Kenchington analyses a case that affirms the existence of a judicial ‘safety net’ to protect vulnerable adults who retain capacity so do not fall under the MCA 2005 or the Court of Protection ‘In the Re F decision, Lord Donaldson of Lymington MR affirmed the use of the common law as a ‘great safety …
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