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Capacity & Court of Protection
CPD Points:
Up to 1 point. details »

Due to the difference in guidelines between the SRA and the Bar Standards Board, CPD points are awarded differently for Solicitors, Barristers and Legal Executives:

Regulated by the Solicitors Regulation Authority:
Listen and pass the quiz: Gain 1 CPD point (60 minutes)
Listen only, gain ½ a CPD point (30 minutes)

Regulated by the Bar Standards Board:
Listen and pass the quiz: Gain 1 accredited CPD point (60 minutes)

Regulated by ILEX:
Listen and pass the quiz: Gain 1 CPD point (60 minutes)
Listen only, gain ½ a CPD point (30 minutes)

  • FREE
30 minutes of audio
(+ optional 5 minute online quiz)
Plays on Computer:
Yes Downloadable as MP3:    Yes
Course Aims:

This podcast aims to outline for the listener some of the key issues when drafting a will for a client which is likely to be later challenged on the grounds that the testator lacked mental capacity to approve it. It will cover practical issues for practitioners on how to spot potential "red flags" signs of incapacity, how to deal with them and what role medical experts play in the client's assessing capacity. The podcast also addresses the jurisdiction of the Court of Protection to determine what is in the best interests of an incapacitated person and what factors are relevant when constructing a statutory will.

After completing the course you will:
  • Be aware of the factors that have lead to the growth in contested probate claims;
  • Know what practical steps legal professionals can take to mitigate emotive clients and settle a contested probate claim quickly;
  • Understand the "Golden Rules" when drafting a will for a client that may later be challenged for want of capacity;
  • Know what test should be applied to cases of alleged incapacity;
  • Know the role of an expert medical witness, what they should be instructed to comment on and how probative their evidence is likely to be;
  • Know what to do about unusual gifts and other "red flags" that may indicate a client's capacity;
  • Be aware of the issues when taking instructions from a client who has difficulty communicating;
  • Know the approach the Court of Protection takes to constructing a statutory will.
Intermediate Difficulty: 3 of 5
Case Update
Practical Guide
Sources and References:
  • Mental Capacity Act 2005 s4;
  • Larke v Nugus [2000] WTLR 1033;
  • Parker v Felgate 1883 8 P.D.171;
  • Ritchie v Joslin [2009] EWHC 709 (Ch);
  • Sharp & Anor v Adam & Ors [2006] EWCA Civ 449;
  • Banks v Goodfellow [1870] LR 5 QB 549;
  • Re P [2009] EWHC 163 (Ch);
  • ITW v Z [2009] EWHC 252.

In this podcast, Jennifer Haywood looks at testamentary incapacity as grounds to set aside a grant of probate. It will look at the test for incapacity and how legal advisors can best protect the wishes a client from subsequently being challenged. Attention is also given to the appropriate role of medical expertise when looking at mental health issues and also what approach the Court of Protection will take when constructing a statutory will in the best interests of a person who has already lost capacity.

Podcast added: 15/12/09

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