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In the recent case of Rudyard Kipling Thorpe (Litigation Friend of Leonie Leanthie Hill) v Fellowes Solicitors LLP [2011], the High Court has departed from the usual approach taken regarding the mental capacity of elderly clients.
The usual rule in relation to wills is that where an elderly and ill testator is making a will, the will should be witnessed by a medical practitioner who should be satisfied as to the testator’s mental capacity to understand and make the will.

In the case, the solicitors involved did not realise that an elderly client who was selling her property was suffering from dementia. The woman’s son alleged that because of her illness, she had not given competent instructions, resulting in the property being sold at undervalue. However, the court ruled that it is not necessary to make enquiries into a person’s mental capacity unless their conduct or other information provided would raise doubts in the mind of a reasonably competent professional. The expert witness in the case explained that dementia would not necessarily mean that a person would not have capacity to understand what they were doing at all times.

This case is unlikely to change the stricter approach taken in relation to wills but shows that mental capacity is a complicated issue where legal decisions are at stake.


Written by Andrew Hodges

May 25, 2011 at 4:36 pm

Posted in Comment, LinkedIn

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