THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000 BY ADRIAN DOUGLAS WARD, SOLICITOR OF MESSRS TC YOUNG TURNBULL AND WARD, 54 MAIN STREET, BARRHEAD, GLASG [2014] ScotSC 4 (14 January 2014)

THE ADULTS WITH INCAPACITY (SCOTLAND) ACT 2000 BY ADRIAN DOUGLAS WARD, SOLICITOR OF MESSRS TC YOUNG TURNBULL AND WARD, 54 MAIN STREET, BARRHEAD, GLASG [2014] ScotSC 4 (14 January 2014)

The sheriff erred in refusing the application solely on the basis of a mental health officer's oral submission and without proper evidential hearing; the court must be satisfied by appropriate evidence, including medical testimony, that the WI adult had testamentary capacity when expressing testamentary intention and that intention remains current. The matter is remitted for proof before a different sheriff.

Citation
[2014] ScotSC 4
Parties
Pursuer: Adrian Douglas Ward, Solicitor of Messrs TC Young Turnbull & Ward; Interested Party: East Renfrewshire Council; Subject of Application: WI adult (unnamed, person with incapacity)
Jurisdiction
Scotland
Judgment Date
14 January 2014
Procedural Posture
Summary Application Under the Adults With Incapacity (scotland) Act 2000 / Appeal From Sheriff to Sheriff Principal
Outcome
Appeal allowed; sheriff's refusal of crave 5 recalled; case remitted for proof before a different sheriff.
Legal Topics
Intervention Orders, Testamentary Capacity, Statutory Wills, Court Procedure in Incapacity Cases
Mental Capacity Law Succession Law Civil Procedure Intervention Orders Testamentary Capacity Statutory Wills Court Procedure in Incapacity Cases

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Parties

Adrian Douglas Ward, Solicitor of Messrs TC Young Turnbull & Ward

Pursuer

East Renfrewshire Council

Interested Party

WI adult (unnamed, person with incapacity)

Subject of Application

Procedural Posture

Summary Application Under the Adults With Incapacity (scotland) Act 2000 / Appeal From Sheriff to Sheriff Principal

Legal Issues

  1. 1 Whether the court can grant an intervention order authorising a solicitor to execute a will on behalf of an adult with incapacity (WI adult) under the Adults with Incapacity (Scotland) Act 2000.
  2. 2 What evidential standard and procedural safeguards are required before such an order can be granted, specifically regarding proof of testamentary capacity.

Ratio Decidendi

The sheriff erred in refusing the application solely on the basis of a mental health officer's oral submission and without proper evidential hearing; the court must be satisfied by appropriate evidence, including medical testimony, that the WI adult had testamentary capacity when expressing testamentary intention and that intention remains current. The matter is remitted for proof before a different sheriff.

Court Disposition

Appeal allowed; sheriff's refusal of crave 5 recalled; case remitted for proof before a different sheriff.

Orders

  • Recall of the sheriff's interlocutor dated 5 September 2013 refusing crave 5.
  • Remit to the sheriff for hearing of proof on testamentary capacity and intention.