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What are the tests for mental capacity when making a Will?

View profile for Paul Olubiyi - Solicitor
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The plethora of issues linked to mental capacity as it affects making a will, leaving legacies in wills to certain beneficiary,  getting married, setting out Lasting Power of Attorney etc. is a minefield. 

Due care and attention needs to be followed  to ensure parties are not unduly influenced or coerced into taking decisions that they may end up regretting. 

A recent case highlights the delicate predicaments faced by Attorneys and Deputies and other family members who are concerned that their loved are being deceived as a result of their limited capacity. 

In Mundell V Name 1, a Deputy applied to the court for permission to marry to be declined in a case where someone is vulnerable. This case was centred around the test for mental capacity when making decisions and the consequences thereof.

In this case the deputy had concerns over Mr P's lack of judgement when deciding to marry someone he had known for 3 years after receiving a lump sum award of £1.5 million following an accident where he lost his leg. The deputy argued Mr P was easily persuaded and did not realise that following a divorce his partner could make a claim against the estate. The full details of the case were highlighted in an article published by STEP

The issue of mental capacity is complex, it can give rise to claims against an estate and can cause considerable upset and anguish. 

In the litigious society we live in it is imperative you seek the advice of an experienced solicitor that understands the tests which need to be applied and procedures to be followed should there be concerns over mental capacity or indeed a chance that a challenge would be made.

F Barnes can assist parties and help set up Trusts to safeguard legacies left to vulnerable adults. We offer you the chance to have a full and detailed consultation so that you have peace of mind knowing that you and your loved ones are protected.

To book a consultation with no obligation contact a member of our team 

 

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