blog.wealthplanning.tvCarl's Mediation Blog | by Carl Islam, LLM (Exon)(International Business Legal Studies), Diploma in

Art Law (Institute of Art & Law) (London), Barrister & CMC Registered Mediator – Trust & Estate Disputes, Cultural Property & International Dispute Resolution Carl’s Mediation Blog by Carl Islam, LLM (Exon)(International Business Legal Studies), Diploma in Art Law (Institute of Art & Law) (London), Barrister & CMC Registered Mediator – Trust & Estate Disputes, Cultural Property & International Dispute Resolution SearchMy Website Post navigation ← Older posts ‘My article – Golden Rule in Commercial Mediation” is scheduled for publication in the Law Society Gazette (online) either tomorrow or on Monday’ Posted on May 9, 2024 by Carl Islam I have broken off from writing the 2nd ed of the Contentious Probate Handbook for the Law Society for 30 minutes, to mention that the editor of the Law Society Gazette has just informed me that my article ‘Golden Rule in Commercial Mediation’, will be pusblished online in the Law Society Gazette either tomorrow or on Monday. This is my 2nd article for the LSG over the last 6 months. My previous article was entitled ‘Commercial Mediation of Music Disputes.’ Just Google those words to find it. The LSG has given permission to the CMC to republish that article on their website, to a worldwide audience. I am currently wriritng the Costs Chapter of the book, and by Sunday will have completed the draft chapter for submission. I will then have written-up almost half the book. As I have been writing the book, I have discovered significant changes in the law, procedure and practice in relation to these claims, and following publication will offer the LSG a series of short articles as updates for solicitors. Now back to the book! Posted in Uncategorized ‘Testamentary Capacity’ Posted on May 7, 2024 by Carl Islam In Leonard v Leonard (2024 EWHC 321 Ch) [149] to [157] Mrs Justice Joanna Smith provided a useful summary of the key legal principles: (i) It is not the law that a person suffering from reduced cognitive abilities owing to a mental illness has no testamentary capacity. (ii) The enquiry is whether, the deceased testator’s [‘ T ‘s’] mind is so unsound that [ T ] ‘cannot understand what he is about … or his ability to make a rational decision is absent’ ( Gardiner v Tabet [2021]). (iii) The Banks test concerns the ability or capacity to understand the matters identified therein. It does not require actual understanding or recollection and it is not to be equated with a test of memory. (iv) There is no requirement that T actually remembers the extent of his property & deficiencies of memory are not the equivalent of incapacity. (v) When considering testamentary capacity, the court is concerned with the ability to make decisions, not merely the ability to understand a given transaction, or a particular choice that has already been made, which are issues to be considered under ‘knowledge and approval’ ( Perrins v Holland & Simon v Byford [2014]. (vi) When evaluating limb 2 of the Banks test, there is no need for T to be able to compile a mental inventory or valuation of all his assets disposed of by his will, but merely to have ‘a general idea’ of those assets ( Todd v Parsons [2019]. (vii) T does not lack testamentary capacity because he is mistaken about, or fails to ascertain full details of his property ( Minns v Foster Ch, 13 December 2002 (unreported)). (viii) Furthermore, there is no need for knowledge of the actual value of assets ( Blackman v Man & Schrader v Schrader [2013]). (ix) When evaluating limb 3 of the Banks test, T must have capacity to comprehend the nature of the claims of others, whom by his will he is excluding from all participation in his property. (x) The question with which the court is concerned when considering the Banks test is transaction and issue specific. T must have the mental capacity (with the assistance of such explanation as he may have been given) to understand ‘the particular transaction and its nature and complexity’ ( Hoff v Atherton & Hughes v Pritchard ). This would appear to encompass not only the complexities in the will itself (limb 1), but also the complexity of T ‘s property (limb 2) and of the moral claims on his estate (limb 3). (xi) The 4th limb is a separate element. (xii) In Sharp v Adam , the Court of Appeal observed that, with reference to the 4th limb, the judge could have asked ‘whether [ T’ s] human instincts and affections, or his moral sense, had been perverted by mental disease,’ & observed that the 4th limb is ‘concerned as much with mood as with cognition’. It is in this way that it is to be distinguished from the previous 3 limbs, which are purely concerned with cognition. I will of course discuss this case along with recent cases about Undue Influence and Lack of Knowledge and Approval, in Chapter 3 – ‘Probate Claims’ of my forthcoming book for the Law Society – the 2nd Edition of the Contentious Probate Handbook . This will be my 8th book. I am going offline from LinkedIn for the next 3 months, to focus of completing the writing of the 1st complete draft of what is looking like a 400 page book. Ellen Radley – who is one of the world’s leading forensic document advisors, and Dr Hugh Series (Oxford University) – who in my opinion is the UK’s foremost expert on testamentary capacity, are each kindly contributing Practice Notes which will appear as Appendices about: (i) Forensic Examination of Handwriting; and (ii) Mental Disorders, respectively. By the end of this week I will have completed the writing of around 50% of the book. So, it is now time for me to return to life as a hermit – well at least until mid-July! Posted in Uncategorized ‘Evidence at Trial in Contentious Probate Cases’ Posted on April 20, 2024 by Carl Islam The following is a brief extract from Chapter 5 – ‘Litigation’, of my forthcoming 400 page book – the 2nd Edition of the ‘Contentious Probate Handbook’. I am currently on schedule to complete the drafting of Chapter 5 for submission to my editor in 3 days time. I will then have completed the first draft of around 1/3rd of the book. I am on schedule to complete the book before my Birthday on 22 July: 5.3.5 Evidence The general rules of evidence apply in probate claims subject to special rules about: (a) admissibility; and (b) the evidence required to prove particular matters, i.e. due execution, revocation, testamentary capacity, knowledge and approval, undue influence and fraud. … In a contentious probate case, the guiding principle is that a witness should give evidence in his or her own words on issues in the case in relation to which his evidence is likely to assist the court, and nothing else. See also paragrapah 5.8.6 – ‘Reality-Testing’, below. … ‘Recent authorities about how a judge should approach the finding of a fact are: The statement of Legatt J (as he then was) in the commercial case of Gestmin v. Credit Suisse [2013] EWHC 3560 (Comm) … that ‘the best approach for a judge to adopt in the trial of a commercial case is, in my view, the place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations and to base factual findings on inferences drawn from the documentary evidence and known or probable facts’ has attracted criticism: see CXB v. North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB) at [3] – [10] approved by the Court of Appeal in Kogan V Martin [2019] EWCA Civ 1645. In the latter case, Floyd LJ stated at [88] that ‘a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all the evidence.’ … (Tristram And Coote’s Propbate Practice. Thirty-Second Edition (2020), by PR D’Costa, P Teverson and T Synak, Lexis Nexis, Paragrpah 39.18, Footnote 3). … Where, as is often the case, facts relating to the making and execution of a will are solely in the knowledge of one party, e.g. where a testator drafted a home-made will under the terms of which he gifted assets to a person who was living with him, then the...