Issues of mental capacity may not feature heavily in the caseload of the average litigator, but many of us will have had reason at one time or another to question our own client’s instructions, or those being provided by the opposing party.

Capacity issues can arise unexpectedly in any case, and when they do, a number of different considerations come into play: what about representation? What about settlement? Costs? Does the Court of Protection need to be involved? It is therefore something all litigators (indeed all lawyers) should be alive to.

The aim of this article in Solicitors Journal by private client and Court of Protection partner Gareth Ledsham is to be a ‘rough and ready’ guide to capacity issues in litigation and a starting point in how to navigate them.

Litigation capacity - an introductory guide is available to read on the Solicitors Journal website.

Gareth is a partner in the trust and estate disputes team. He advises on the resolution of conflicts that may arise out of trusts, or the estate of a deceased person including:

  • challenges to wills
  • claims for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975
  • claims relating to domicile and where assets are located in multiple jurisdictions
  • breach of trust/applications to remove executors and trustees
  • claims relating to ownership of a deceased's property (implied trusts and proprietary estoppel)