Testamentary capacity meaning

Testamentary capacity Oliver v Oliver [2024] EWHC 2289 (Ch) – News Analysis: Will overturned for want of testamentary capacity and undue influence (Oliver v Oliver). This judgment is an uncommon instance of a successful attack on a professionally drafted Will for both incapacity and coercion, even where the court had a recording of the testator’s instructions and the GP had issued a supporting certificate. Despite those formalities, the court concluded the Will should be set aside on both grounds. Alexandra Rogers, managing associate at Foot Anstey LLP. Leonard v Leonard (by her litigation friend Sharon Thompsett) [2024] EWHC 321 (Ch) – News Analysis: High Court offers guidance on the test for testamentary capacity (Leonard v Leonard). The High Court examines and clarifies Banks v Goodfellow, and underscores the continuing importance of expert evidence in capacity disputes. It underscores how clinical and legal evaluations interact closely, effectively. George Vare, barrister at Serle Court Chambers. Wilkinson v Hicken [2023] EWHC 1983 (Ch) – News Analysis: Personality disorders...

Oliver v Oliver [2024] EWHC 2289 (Ch) What are the practical implications of this case? This judgment stands as an uncommon instance of a Will being set aside for both want of testamentary capacity and undue influence despite professional preparation, the court having the testator’s recorded instructions, and a certificate obtained from the testator’s GP. It merits close reading for its survey of authority and its demonstration of the application of legal principles in real cases, including where a defendant declines to engage with the proceedings. The court concluded that William lacked testamentary capacity after a detailed evaluation of his medical notes (including a post-mortem), expert opinion from a Consultant in Old Age Psychiatry, and witness evidence. Although a determination on undue influence was not required, the reasoning still provides a helpful illustration of a successful claim. Jane adduced substantial material evidencing Rodney’s domination of William, which encompassed restricting his contact with other relatives and influencing his medical treatment. Rodney induced William to cease his prescribed treatment and instead...

In this issue: Spring Budget 2024 Probate Court of Protection UK taxes for Private Client HMRC Manuals updates Tax avoidance, evasion and non-compliance Digital assets and cryptoassets Charity and philanthropy Updated HMRC guidance: How the tax system operates for charities Contentious trusts and estates International Question of the week Additional Private Client updates this week Daily and weekly news alerts LexTalk®Private Client: a Lexis®PSL community New and updated content Dates for your diary Trackers Latest Q&As Useful information Spring Budget 2024 On Wednesday, 6 March 2024, the Chancellor of the Exchequer, Jeremy Hunt, presented the government’s Spring Budget. For commentary on consultations and statements pertinent to Private Client practitioners, please see News Analyses: Spring Budget 2024—Private Client analysis and Video analysis—Spring Budget 2024: Key Private Client announcements. For coverage of corporate tax matters, consult News Analyses: Spring Budget 2024—Tax analysis and Video...

In this issue: Court of Protection UK taxes for Private Client HMRC Manuals updates Budgets and Finance Bills Insolvency—Private Client Contentious trusts and estates Scotland, Wales and Northern Ireland International Question of the week Additional Private Client updates this week Daily and weekly news alerts LexTalk®Private Client: a Lexis®PSL community New and updated content Dates for your diary Trackers Latest Q&As Useful information Court of Protection Court of Protection approves indefinite extension of injunction against P’s son in order to protect and support best interest decisions made for P (MK (‘P’), In the Matter of) This matter relates to MK, an 81-year-old woman with vascular dementia. To safeguard court-ordered best interests decisions concerning MK’s living arrangements and care, the court continued, on an open-ended basis, an injunction limiting her son’s contact and preventing him from independently arranging medical assessments. The court determined it holds jurisdiction, under...

Legal validity of Wills In Scots law, a testamentary writing made after 1995 is treated as valid and self‑proving where the following requirements are met: the testator has signed every page the signing took place in the presence of a witness the witness signed the final page The absence of one or more of these features is not fatal, provided the testator did sign the document. If so, anyone with an interest (for example, an executor or beneficiary) may ask the court to ‘set up’ the writing. This can be done by summary application in the Sheriff Court, or incidentally within other proceedings, and in practice is often pursued when applying for confirmation. The burden of proof rests on the applicant, and evidence will usually be by affidavit unless the court directs otherwise. A decree has the effect of creating a presumption that the document was subscribed by the person granting it. Grant of confirmation Confirmation is the...

Failure of gifts under Will Even where a person dies leaving a validly executed Will, some legacies and testamentary gifts may not take effect. Possible reasons are: uncertainty disclaimer dissolution of marriage or civil partnership disqualification due to: undue influence or fraud forfeiture being an attesting witness the beneficiary having been adopted by a third party, altering their former legal relationship to the testator failure to satisfy a contingency lapse ademption If the residuary estate is insufficient to meet the liabilities, the legacies must be reduced—ie abate—so those liabilities can be discharged. For further detail on ademption, lapse and disclaimer, and on failure of gifts generally, see: Failure of gifts—overview, which links to more in-depth content. Working out beneficiaries’ entitlement to inherit under a Will Once it is confirmed that the Will is the testator’s final testamentary document and validly executed, and...

Definition and purpose of a Will In broad terms, a Will is a document executed in line with the formal requirements set out in section 9 of the Wills Act 1837 (WA 1837). It records statements by the person making it about how their property should be distributed after death. Wills are distinct from codicils, which typically add to, vary, revive or revoke an earlier Will, and an individual may hold more than one Will (eg where they are disposing of property in different countries). If someone dies without a valid Will, the intestacy rules will apply. A Will is commonly used to: revoke or alter any previous Will or other testamentary disposition appoint executors (or executors and trustees) appoint guardians for the testator’s minor children confer additional powers on trustees ensure the testator’s property passes to beneficiaries of their choosing Note that a prospective testator cannot delegate to another person the decision about how their property is...

[ Insert Firm details ] [ Addressee—insert name and address of expert ] [ Date of letter ] Private and confidential Dear [ insert name of expert ] Letter of Instruction Case heading In the Late Estate of [ insert name ] Deceased (‘the Deceased’) We represent [ insert name ] (‘Our Client’), the Deceased’s [ son OR daughter ]. We ask that you provide expert opinion on whether the Deceased had testamentary capacity to prepare and sign [ her OR his ] Will dated [ insert day ] of [ insert month ] [ insert year ] (the Will). This letter outlines the factual background, identifies the principal documents, and sets out the matters you should consider. As an expert witness, you will be expected to: Prepare an expert report; Respond to any questions arising from that report; Where appropriate, confer with the other side’s expert; and Give evidence at the trial. ...

Dear [ insert name of GP or other appropriate capacity assessor ] Re: [ insert name of patient ] We act on behalf of [ insert name of proposed deputy ] and understand that the above-named individual is your patient and under your care. Our client has asked us to prepare an application to the Court of Protection seeking approval of a statutory Will on behalf of [ insert name of patient ]. By way of context and background, [ Insert, as appropriate, background information about P’s property and affairs, testamentary history and current testamentary intentions, if these can be ascertained ] Any application to the Court of Protection for a statutory Will must be supported by evidence of capacity in Form COP3, which is enclosed for your completion. The form consists of two parts, A and B. Part A has already been completed by our client. We would be grateful if you could kindly complete Part B of the form, bearing in...

This is the last Will of me This document constitutes the final Will of [ full name of patient ] of [ full address of patient ], [ otherwise OR commonly OR formerly ] [ known as [ alias or former full name ] OR recorded on their birth certificate as [ birth certificate name ] ], made on their behalf by [ full name of person authorised to make the Will ] of [ full address of person authorised to make the Will ], the individual empowered in that regard by an order dated [ date of order ] of the Court of Protection under section 18(1)(i) of the Mental Capacity Act 2005. [ I cancel all previous testamentary arrangements made by me and affirm that this is my final Will. ]...