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Difference between revisions of "Overview of Adult Guardianship and Incapacity (15:III)"
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Overview of Adult Guardianship and Incapacity (15:III) (view source)
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In addition, s 51(1) provides generally that a court may appoint a person as a child’s guardian if there is sufficient evidence that it is in the best interests of the child. | In addition, s 51(1) provides generally that a court may appoint a person as a child’s guardian if there is sufficient evidence that it is in the best interests of the child. | ||
== C. Capacity to Make a Contract == | |||
To enter into a contract, a person must have the mental capacity to understand both the nature of the contract and its effect on his or her interests. If a contractor is unaware that the contractee has an impairment or illness that impacts capacity, the contract may be enforceable against the contractee and/or the committee. Some cases indicate, however, that even if the contractor had no notice of the contractee’s incapacity, the contract may still be set aside as “unfair”. If the contractor knows or a reasonable person would have known that the contractee was mentally ill, the contract is voidable. D.DRAFTING A WILLSection 36(1) of the Wills, Estates and Succession Act [WESA] provides that “[a] person who is 16 years of age or older and who is mentally capable of doing so may make a will.” However, the capacity necessary to draft a will is not set out in the Act, but has been developed through common law.To possess testamentary capacity an individual must be of“sound mind, memory and understanding”(Banks v Goodfellow (1870), LR 5 QB 549 at 560 (Eng CA), A testator must be capable of understanding the following at the time the will is created, both at the time of providing instructions and executing the will: the nature and effect of making a will; the extent of the testator’ s property that may be disposed by a will; the persons who are to receive the property under the will, and the moral claims of persons (such as family members and others who are close to the testator) who should receive a share of that property; and the way in which the assets are to be distributed under the will. For more information, please refer to the Making and Executing a Will section in Chapter 16 (Wills and Estates) of this manual. | |||
