Burden of Proof

In Re W (Enduring Power of Attorney) (TLR 10 January CA)

Mrs W granted an enduring power of attorney to her eldest child, Mrs X, who had a hostile relationship with her two. siblings. The siblings objected to the registration of the power of attorney on the grounds that Mrs W lacked sufficient mental capacity to execute a valid power and the Master of the Court of Protection refused to register it. Mrs X’s appeal was allowed by the High Court judge who was upheld by the Court of Appeal. Where objection is on the ground of invalidity due to incapacity under s6(5)(a) of the Enduring Powers of Attorney Act 1985 the burden of proof lies on the objectors throughout. The court rejected the objectors’ contention that once there was evidence that the donor did not understand the nature and effect of the power of attorney, the burden shifted to the attorney to prove that the donor did have the necessary understanding at the relevant time. Section 6(6) clearly imposed the burden of proof on the objectors.