Connolly v Connolly and Capacity Issues

June 28, 2017

The issue of mental capacity in relation to a testators wishes and a solicitor’s duty particularly towards elderly clients has arisen once again in the most recent judgement of Connolly v Connolly & Ors[1]. This article will discuss the rules laid down by the courts in relation to mental capacity, the comments made by Mr Justice Horner in this most recent case and also the new Mental Capacity Act (Northern Ireland) 2016.

The seminal case on mental capacity is Banks v Goodfellow[2] which sets out that the testator must understand three things at the time the will was made. Firstly, what he is doing, i.e. that he is giving property to one or more objects of his regard. Secondly, what he is giving, that is, the nature of his property, and some idea of what it is worth. Lastly, who he is giving to i.e. an idea of the nature of claims to his property from closely connected persons that he is excluding or including by his disposition. There is also a further requirement set out by the court in Re Simpson[3] which is known as the ‘golden rule’ where the testamentary capacity of an elderly client is called into question. This case sets out in this scenario ‘there is one golden rule which should always be observed…the making of a will by such testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator and records and preserves his examination and finding.”  Further to this it is accepted that relatives should always be excluded from the room in these cases.

Connolly v Connolly[4] which was heard in the Chancery Division of the High Court of Northern Ireland reaffirmed the position that special care needs to be taken where a client has potential issues of mental capacity and is elderly. Mr Justice Horner stated in the concluding paragraphs of the judgment “This court still exists to ensure that the law is upheld and most importantly that the rights of the weak, the vulnerable and the infirm both mentally and physically are protected.” He further stated that “It is the task of this court to ensure so far as it is possible, that elderly people making transfers of lands or gifts of property or bequests of money have the necessary capacity to do so, and if so, that they are not the victims of undue pressure exerted by avaricious relatives or greedy “friends” or dishonest “carers”. His concluding remarks also reiterated the rule in Re Simpson where a solicitor has any doubt as to the mental capacity of his client he should ensure that they are medically examined and that the testator fully understands what he or she is doing and is not operating under the influence of another. It was recommended by Mr Justice Horner that in these circumstances solicitors document in detail the steps they have taken to ensure that the testator has sufficient capacity and has not been coerced by undue influence in making their will. The relevancy has of this case and these issues have been heightened by the report released last year by the Commissioner for Older People[5] which pointed to the lack of awareness amongst professionals in relation to these issues.

The Mental Capacity Act (Northern Ireland) 2016 received royal assent in March 2016. It further clarifies the situation by specifically defining mental capacity in the legislation and implements safeguards for those with capacity issues. The Act was to be fully implemented however the collapse on the Northern Ireland Assembly in early 2017 has resulted in the new legislative framework not yet being in force.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Cleaver Fulton Rankin is a full service law firm based in Belfast. We have dedicated and highly experienced private client law solicitors who can advise on all legal matters relating to wills, trusts and inheritance tax planning.  For more information, please call our office on 028 9024 3141.

[1] [2017] NI CH 8

[2] (1870)

[3] (1977)

[4] [2017] NI CH 8

[5] ‘Financial Abuse of Older People in Northern Ireland: The Unsettling Truth’