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PLEASE NOTE: This article was published on the date listed below and may now contain information that has since been updated or changed. We have retained this article as it may still contain helpful comments. However, we advise you to make an appointment to see us for the most up to date information on this topic.

March 2006

Legal Capacity

Knowing what you are signing

Legal capacity is an issue that we have to consider every time we receive instructions from a client or ask a client to sign a document.

The issue of legal capacity becomes particularly important when we are acting for elderly clients with respect to Wills and Enduring Powers of Attorney. It is not uncommon for us to request medical evidence to satisfy us that the client has the mental capacity to understand both the advice given and the documentation they may have to sign. We have occasions when clients appear to understand what they are signing but upon further questioning it is apparent that they have little or no understanding of what is actually happening.

Recent Case

The Court of Appeal recently considered this issue in relation to testamentary capacity and the validity of a Will. The evidence was that a 94-year-old testatrix had been admitted to hospital following a stroke. To the hospital staff, she appeared to be disoriented and in a distinctly confused state. A lawyer from a firm that had previously acted for her concluded, on visiting the hospital, that the testatrix was unable to understand the implications of any legal documents or give instructions. Another lawyer from another law firm then visited the testatrix, obtained instructions, prepared the will, returned to the hospital and had the testatrix sign the will.

Court Decision

The Court found that this second lawyer failed to make an appropriate assessment of the testatrix’s mental state. The Court commented that what was required to satisfy testamentary capacity was to show affirmatively that the testatrix was actively engaged with and alive to her circumstances in the particular exercise which she was undertaking. The Court held that there was not the necessary testamentary capacity in this case and the testatrix’s latest Will was not accepted for a grant of Probate.

Our approach to the issue of capacity has always been cautious, as we have always wanted to ensure that documents signed by our clients will be legally effective.

Do you and members of your family have current wills and enduring powers of attorney? If not, contact us immediately. Don’t wait until health concerns become so serious that the issue of legal capacity comes into question.