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Same rules apply

The test for mental capacity for making a lifetime transaction can be just as high as that required for when drafting a will, warns Margaret Windram

3 July 2015

Most will drafters are very careful about testing capacity to make a will. They'll obtain a medical report (where required), record meetings carefully and ensure that they see the testator alone. However the same issues apply equally to lifetime transactions but, do they get the same attention?

Re Estate of Joyce Smith (deceased); Kicks and another v Leigh [2014] EWHC 3926 [ch] illustrates some of the things that should be considered when faced with an elderly or potentially vulnerable client, who is seeking to make a significant lifetime transaction.

Mrs Smith's death claim was made regarding the proceeds of the sale of her home, which had been transferred by the solicitors to a bank account in the joint names of Mrs Smith's daughter and son-in-law, Mr & Mrs Leigh.

Mrs Leigh claimed that the transfer was a gift to her from her moth...

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