Evidence of Capacity - Lessons Learned
The capacity of a person to have done a certain act or executed a certain instrument is reviewed retrospectively in both the Court of Protection and the civil courts but do all courts apply the same test and does their approach to the evidence differ?
Whether or not influenced by the ‘time-specific’ and ‘issue-specific’ approach embodied in the Mental Capacity Act 2005, over recent years both types of court seem to have demonstrated an increasing preference for - and placed greater weight on - evidence as to capacity by reference to the closeness of the witness in time and place to the decision-maker and decision in question, rather than by reference to expertise, knowledge, or experience.
This webinar will consider important lessons learned both for professionals engaged or assisting in transactions that may be questioned in the future and for those advising in respect of potential challenges after the event.
What You Will Learn
This webinar will cover the following:
- The recent case law considering evidence of incapacity
- The applicable test in different cases
- Lay v expert evidence
- Contemporaneous v retrospective evidence
- Lessons for transactions
- Lessons for litigation