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Drilldown: Cases

Not many cases (261 of them) have been added to the database so far. To see the full list of cases (2087) go to the Mental health case law page.

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Cases > Date: January 19, 2018 & Parties : AB or Sandra James & Court : Family Court or High Court (Chancery Division) or Northern Ireland High Court or Other

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Page name Sentence Summary
Application by Darlington Borough Council in respect of the Adult: AB (2018) ScotSC 4

Scottish capacity case

"The adult, AB, lacks capacity to make decisions as to her care and residence and is subject to Orders made by the Court of Protection in England. During 2017 the Court of Protection decided that it would be in AB’s best interests to move from a care home in Darlington (hereafter referred to as “the English Care Home”) to a care home within the Sheriffdom (hereafter referred to as “the Scottish Care Home”) for a trial period. ... A Summary Application was subsequently submitted to Glasgow Sheriff Court in which the Applicants sought two Orders from the court. Firstly, the Applicants sought an Order under paragraph 7(1) of Schedule 3 to the Adults with Incapacity (Scotland) Act 2000 (hereafter “the 2000 Act”), recognising the Order of the Court of Protection dated 27 April 2017. Secondly, the Applicants sought an Order under paragraph 8(1) of said Schedule 3, directing the Office of the Public Guardian in Scotland to register said Order of the Court of Protection dated 27 April 2017 in the Register of International Measures maintained by the Public Guardian."

James v James (2018) EWHC 43 (Ch)

Banks v Goodfellow test for testamentary capacity survives MCA

"There is a preliminary question of law as to the test to be applied for testamentary capacity in a case like this, where the testator has made a will, died, and then the question of capacity has arisen. The traditional test for such a case is that laid down in Banks v Goodfellow (1870) LR 5 QB 549, 565, per Cockburn CJ: 'It is essential … that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, avert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made.' ... More recently the Mental Capacity Act 2005 has made fresh provision for the law of mental capacity in certain situations. What is unfortunately not made express in that legislation is the extent to which this fresh provision affects the test for capacity to make a will when that question is being judged retrospectively (typically, though not necessarily, post mortem). ... The general rule of precedent, as applied in the High Court, is that that court is not strictly bound by decisions of co-ordinate jurisdiction, but will follow them as a matter of comity unless convinced they are wrong ... As it happens, I think the decision in Walker v Badmin [2014] EWHC 71 (Ch)Not on Bailii! [that the test in Banks v Goodfellow not only had survived the enactment of the 2005 Act, but that it, rather than anything in the Act, was still the sole test of capacity for judging will-making capacity in retrospect] is right, and for the reasons given by the deputy judge. ... Whilst it is a complication to have two tests for mental capacity in making wills, one prospective and the other retrospective, it is a complication created by the decision of Parliament to legislate as it has, a decision that the courts must respect."

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