STEPHEN LAWSON TEP. STEP England &Wales Committee STEP Worldwide Council Law Society Civil Justice Committee

Transcription

1 STEPHEN LAWSON TEP STEP England &Wales Committee STEP Worldwide Council Law Society Civil Justice Committee

2 Determining Capacity

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6 The views do not reflect the views of the editors of TQR or STEP. Departures from the Golden Rule may amount to negligence on the part of a Will draftsman.

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8 Capacity Will Lawtel 2012 Reports: 7

9 Capacity Will Lawtel 2013 Reports: 16

10 Re Boyes deceased Fischer v Diffley Re Dharamshi deceased Markou v Goodwin Pearce v Beverley Fox and Pettigrew v Jewell Re Ashkettle deceased Feltham v Freer Bouskell Jeffrey & Eyre v Jeffrey Re Simon deceased Re Leslie Stolkin deceased Re Igor Topciapski Turner v Phythian Schrader v Schrader Hawes v Burgess Re Francois Devillebichot

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15 Only 43% of people with Dementia have a diagnosis

16 Note: just because a client has dementia it does not mean he/she does not have capacity to make a Will

17 Simon v Byford [2013] EWCH 1490 Ch N. Strauss QC

18 The law upholds the right of elderly people to leave their property as they choose even if their mental faculties had declined considerably.

19 Simon v Byford [2014] EWCA Civ 280 Lewison LJ

20 it is important to emphasize that at this stage what we are dealing with is capacity in other words potential..

21 Capacity depends on the potential to understand. It is not to be equated with a test of memory

22 I knew the dates of all the Kings of Queens of England now I would have to look them up.

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24 Banks v Goodfellow 1870 LR 5 QB 549

25 MENTAL CAPACITY ACT 2005

26 The relationship between Banks v- Goodfellow and the Mental Capacity Act

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28 Perrins v Holland [2009] EWCH 1945 Lewison J

29 The test of mental capacity is not monolithic but is tailored to the task in hand

30 The traditional test must be applied in the context of the particular testator and the particular estate

31 A complex estate with many potential beneficiaries may need greater cognitive capability than one with a simple estate and few Claimants

32 Burgess v Hawes [2013] EWCA Civ74 Mummery Patten Scott Baker

33 Daphne Burgess 77 at time of Will

34 Lack of Capacity Lack of Knowledge and Approval

35 Attendance Note

36 entirely compos mentis

37 No hesitation in taking instructions from her

38 Accepted he had no Medical Qualifications

39 Accepted difficult to assess capacity when someone else present

40 Accepted that his assessment was not based on any specific questions

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42 That said...

43 It is a very strong thing for the Judge to find that the deceased was not mentally capable of making a Will...

44 When it has been prepared by an experienced and independent Solicitor following a meeting...

45 When it was executed by her after the Solicitor had read it through and explained it...

46 And when the Solicitor considered that she was capable of understanding the Will...

47 The terms of which were not, on their face, inexplicable or irrational.

48 My concern is that the Courts should not too readily upset...

49 On the grounds of Mental Capacity...

50 A Will that has been drafted by an experienced independent lawyer

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52 (But still found the Will to be invalid)

53 Ashkettle v Gwinnett [2013] EWCH 2125 Pymont QC

54 Pymont QC Comments on Burgess

55 I accept the wisdom of those comments (in HvB)..

56 ..though I observe that they do not go far so as to suggest..

57 ..that in every case the evidence of an experienced and independent Solicitor will, without more, be conclusive.

58 Any view the Solicitor may have formed as to the Testator s capacity..

59 ..must be shown to be based on a proper assessment and accurate information or it is worthless.

60 Will Preparers Duties

61 Templeman J, Re Kenward v Adams

62 The Golden Rule

63 Aged Testator.. Will Witnessed by Medical Practitioner

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65 The Will drafter must be aware of the Court s encouragement to involve a Medical Practitioner and be prepared to comply with it, or have good reasons for concluding that this is not applicable in the circumstances

66 The Will drafter has an important role to play in the process and should always carefully record their conclusions as to capacity and their reasons for reaching those conclusions

67 Wills and Inheritance Quality Scheme

68 Use a template document to record notes of interview 2.1

69 Wherever appropriate, record actual words used by client

70 Will drafters MUST be aware of... The Golden Rule... Which sets out good practice

71 It is not always possible to obtain Medical Evidence

72 If not possible..

73 ..explain that in the event of a subsequent challenge on basis of lack of capacity..

74 ..the lack of contemporaneous Medical Opinion may make a challenge more likely to succeed.

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77 Get properly paid

78 Ask client to confirm wish to proceed

79 Record advice given and client s decision

80 If proceed without Medical Opinion..

81 ..ask open questions

82 Establish on balance of probabilities if client fulfils test of testamentary capacity set out in Banks v Goodfellow

83 Try to establish that client can..

84 1. Retain information relevant to the decision 2. Use and weigh that information 3. Communicate those decisions

85 File Notes

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89 Burgess v Hawes Accepted that his assessment was not based on any specific questions

90 I have no doubt about Capacity to make a Will

91 Banks v Goodfellow Questions

92 Specimen Golden Rule report from a Psychiatrist

93 On mental state examination, Mrs K presented as a very cheerful and friendly lady. She welcomed me with coffee and was happy to talk with me. Her dog, clearly a good companion for her, was present..

94 ..I was with her for one and a half hours. Her talk was normal and coherent. Her mood was cheerful. There was no evidence of depression. She was well orientated in time and place..

95 She was able to give me an account of her past history which was very similar to the one that her son had given to me on the telephone...

96 I did not detect any significant problem with her short term memory in our conversation together. She was able to tell me all her activities over the next week.

97 Feltham v Freer Bouskell [2013] EWCH 1952 Charles Hollander QC

98 Solicitors Negligence Action

99 C claims D instructed to prepare Will for Hazel Charlton (aged 90) but failed to do so.

100 I trust you always to keep costs to a minimum.

101 500 on account of costs

102 I regard Mr Ward as an honest and meticulous individual

103 He must have had concerns about Ms Feltham

104 Mr. Ward was only seeing a partial picture

105 Judgment for Claimant

106 712,801

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108 Mini Mental Test (aka Folstein test) (MMSE)

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110 Orientation Attention Recall (memory) Language Copying

111 Does not differentiate between different brain diseases.

112 A score of below 24 is a good marker of dementia

113 The MMSE is quite vulnerable to the effects of age, education and socioeconomic status

114 Patients with damage to the frontal lobe suffer profound changes in personality and behaviour...

115 ...yet may perform normally on all the tests of executive function

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117 Partial Picture

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121 Meg Age 84

122 23 May 2009 Meg has continued to be intermittently confused/lucid

123 23 May 2009 Meg has become very distressed this evening not knowing where she was thought she was in a hotel

124 8 June 2009 Meg was already dressed

125 Dress on the wrong way round

126 10 June 2009 Very confused this morning, unsure how to dress trying to put a towel on

127 12 June 2009 Mini Mental Test 22/30

128 2 August 2009 Hearing aid, but does not wear it

129 30 September 2009 Confused. Thinks she has done shopping and needs to pack up then pay for lunch

130 3 February 2010 Staff Grade Psychiatrist she scored 17/30 on the Mini Mental State Examination

131 9 February 2010 Will Bequests to friends Residue to Children

132 13 May 2011 Radiology procedure she is clearly confused and I do not think she is able to give informed consent for angiogram

133 19 May 2011 Will Excludes Children

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135 Beryl 79

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137 Frontal lobe damage Impaired Judgement

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139 Ability to engage in social conversation not evidence of capacity

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141 Complicated Estate numerous assets

142 Complicated family previous relationships/marriages

143 Different provision for different siblings

144 Long/Complicated Will

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146 Have you seen Testator alone?

147 Banks v Goodfellow questions

148 Accurately record answers

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150 Informal Mini Mental Test

151 File Notes

152 No Delay

153 Feltham v Freer Bouskell Partial Picture

154 Get properly paid

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156 20 High Street Frodsham WA6 7HE