Mental Capacity Flashcards
Leading case which established tradition common law test for mental capacity
Banks v Goodfellow 1870
Cockburn CJ - Testator must have a ‘sound and disposing mind and memory’
Moral compass of responsibility
Assessed on what a decent moral testator would do
Three stage test established in Banks v Goodfellow 1870
Testator must understand nature of business he is engaged in and the legal effect
Testator must be able to recollect the extent of his property
Testator must be aware of and appreciate those persons who may not have a moral claim upon him
Requirement of first part of the Banks v Goodfellow 1870 test
Testator understands he is making a will which takes effect on his death and not some other document.
Requirement of second part of Banks v Goodfellow 1870 test
Name two cases
Testator need only general awareness of his property and not every single item.
Schrader v Scrader 2013
Wood v Smith 1993
Requirement of third part of Banks v Goodfellow 1870 test
Name two cases
Testator able to recall those persons who may have a moral claim upon him if he chooses not to benefit them
Harwood v Baker 1840
Boughton v Knight 1873 - may disinherit children and leave property to strangers to gratify spite or charities to gratify pride
Two cases of delusion of mind
Dew v Clark 1826 - left daughter out of will. Insane delusion which had poisoned his natural affections
Kostic v Chaplin and Others 2007
Which act came into force on 1st October 2007 and sets of general statutory test relating to a person’s informed decisions about their health, welfare and finances.
Mental Capacity Act 2005
Provisions of s1 MCA 2005
Presumption of mental capacity for all persons unless lack of capacity can be proven
Provisions of s2(1) MCA 2005
A person lacks capacity if at the material time he is unable to make a decision for himself because of an impairment of, or a disturbance in the functioning of, the mind or brain.
Provisions of s3 MCA 2005
Whether the person can understand all the relevant information surrounding the decision and reasonable foresee the consequences of making such a decision.
Which cases show MCA 2005 statutory test not enacted to replace the common law test
Scammell v Farmer 2008
Re Walker 2014
Banks v Goodfellow 1870 test remains the soles test for capacity when making a will.
Two cases where MCA 2005 extended to cover modern medically recognised effects that bereavement can have upon making a decision
Key v Key 2010 - bereavement can negatively impact mental capacity
Re Wilson Deceased 2013 - grief of brother will invalid
Rule in Parker v Felgate 1883
Exception under the general rule that a testator must have capacity when executing a will if drafted by a solicitor and
Had capacity at time of writing will and gave instructions to solicitor
Will prepared in accordance with instructions
At time of execution capable of understanding executing a will for which they had previously given instructions.
Roused from Coma to sign will.
Exceptional circumstances such as deathbed executions.
Which case warned that the rule in Parker v Felgate 1883 be applied with caution
Battan Singh v Amirchand 1948
Privy council did not apply rule where instructions given to a lay intermediary to give to solicitor.
Strictly observed
Burden of proof on who to prove capacity where there are suspicious circumstances
Name two cases
Propounder of will
A circumstance which excites the suspicion of the court
Barry v Butlin 1838
Wintle v Nye 1959
