Modern view of Capacity

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    One of the first key principles a Will Writer will learn is that assessment of capacity is crucial to producing a binding Will that will stand up to a future challenge. The principle is that a testator must satisfy the test for capacity at the time of signing the Will however the case of Parker v Felgate [1883] extended this test slightly so that the Will of a testator who had capacity at the time of giving instructions, and is capable of understanding that he is executing a Will for which he has given instructions, will also be valid.

    The facts of the case establishing this principle are as follows: the testatrix gave instructions for her will in July 1882. In August she fell into a coma from which she could be roused to answer questions. Her Will was executed on 29 August. She could not remember the instructions she had given but she did realise that she was executing a Will that she had previously given instructions for.

    The modern case of Re Perrins relied on the facts of Parker and involved the challenge to a Will of Robert Perrins by his son David, on the ground that Robert had lacked testamentary capacity.

    Robert had been diagnosed with multiple sclerosis in 1991 and in 1994 he wrote a Will leaving his entire estate to David. In April 2000 Robert asked a legal executive to attend at his home as he wished to make a new Will and an EPA. Although he found it difficult to communicate at this time he made his wishes very clear; he wanted to leave his estate to Anne, who he described as his carer, or, if she predeceased him, to David and Robert’s brother.

    Numerous drafts and chaser letters were sent to Robert over the next 18 months but the Will was not finalised until September 2001 when it was executed in the car park at the solicitor’s office.

    When Robert died in 2003 David brought his challenge against the Will submitting that it was irrational for his father to leave him nothing as there had been no estrangement between them.

    Although Robert’s capacity was questionable at the time of execution Justice Lewison held that he had full capacity when giving instruction for the Will and understood he was executing this Will when it was signed 18 months later.

    The relationship between Robert and Anne had been a loving one and more than that of just a carer so it was not irrational for him to have wanted to provide for her.

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    About Matt Walkden

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