Enduring Power of Attorney in UK Law

It seems to me that to remove a chosen attorney because of hostility from a sibling or other relative, in the absence of any effective challenge to his competence or integrity, should require clear evidence either that the continuing hostility will impede the proper administration of the estate or will cause significant distress to the donor which would be avoided by the appointment of a receiver. Neither of these conditions is satisfied by the evidence in this case.

For the purposes of RSC 80 – and, now, CPR 21—the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings.

In my judgment that subsection clearly proceeds on the basis that the grounds of objection have to be proved. Accordingly, as I see it, the legal burden remains throughout on the objector, the person presenting the notice of objection. If the objector fails to establish his objection, the instrument must be registered. The court has no residual discretion to refuse registration.

To make a valid Will the law requires what is always referred to as testamentary capacity and, as a separate requirement, knowledge and approval. The latter requires proof of actual knowledge and approval of the contents of the Will. The former requires proof of the capacity to understand certain important matters relating to the Will.

When we move on to knowledge and approval what we are looking for is actual knowledge and approval of the contents of the will. But it is important to bear in mind that it is knowledge and approval of the actual will that count: not knowledge and approval of other potential dispositions. That is why knowledge and approval can be found even in a case in which the testator lacks testamentary capacity at the date when the will is executed.

Dr. White said that, when he visited, he would normally speak first to whoever was caring for Mr. Adam to see how he was. He accepted that his direct communication with Mr. Adam would normally be limited to medical issues, whether he felt well, whether he was in pain, whether he wanted to go to hospital, as well as occasional small talk designed to put the patient at his ease.

Traditionally, the courts have adopted a two stage approach to the evidence in a case where knowledge and approval is in issue. The first stage was to ask whether the circumstances were such as to "excite suspicion" on the part of the court. If so, the burden was on the propounder of the will to establish that the testator knew and approved the contents of the will.