Legal Transactions and Mental Capacity
In the recent case of Rudyard Kipling Thorpe (Litigation Friend of Leonie Leanthie Hill) v Fellowes Solicitors LLP [2011], the High Court 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 or ill testator is making a will, it 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 and that this resulted 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.
Lanyon Bowdler Partner and Head of Private Client Department, Edward Rees, comments “This case follows on logically from the Mental Capacity Act 2005 and highlights that mental capacity is not a black and white issue. Rather it can be complicated and nuanced. The case shows that there is no duty on solicitors in general to obtain medical evidence of a client's mental capacity just because the client is elderly, but only if there are circumstances such as to raise doubt about capacity in the mind of a reasonably competent practitioner. However, it would be dangerous for those who prepare wills to allow the case to become a green light for complacency. Firstly, the case does not relate to the preparation of a Will. Next, the test of capacity must depend upon the transaction concerned. There may be circumstances giving rise to doubt about capacity even if a client appears to be their normal self. Essentially the “Golden Rule” that medical evidence should be obtained if a client making a will is aged or ill still remains."