A question of testamentary capacity

A recent family legal dispute has shed more light on testamentary capacity, for professionals.

McCabe v McCabe [2015] EWHC 1591 (Ch) has provided greater clarity for industry professionals regarding the importance of testamentary capacity when a legal dispute occurs.

The case was based upon a dispute between two brothers, Stephen and Timothy McCabe, who were originally set to receive equal halves of the their mother’s estate upon her death. The dispute arose because Mrs McCabe had decided to disinherit her son, Timothy, before her death. Since she suffered with dementia, Timothy chose to challenge the will in court based upon a question of his mother’s beliefs, which he believed had been false and delusional.

Tensions originally rose before Mrs McCabe’s death when she chose to revoke her son Timothy from her Lasting Powers of Attorney, since he had reported his brother to the police for financially abusing Mrs McCabe. Stephen was not formally charged, but it is clear that the relationship between the brothers soured instrumentally from this point onwards.

The key point of dispute was regarding whether Mrs McCabe’s decision to disinherit one of her sons was based upon a false belief. Timothy challenged the will on three grounds: want of knowledge and approval, undue execution, and lack of testamentary capacity. After an 11 day trial, the judge, Jeremy Cousins QC, found the will to be valid. Although the deceased had suffered with dementia, it was found that her choice to disinherit her son was not based upon false belief.

For practitioners, this case highlights previous legal tests for testamentary capacity as raised in the case Banks v Goodfellow. It was found in that case that in order for a false belief to be delusional (i.e. to be a product of Mrs McCabe’s dementia), it must be one that no rational person would conclude and also a belief that the person cannot be reasoned out of. Expert evidence in McCabe was provided by the consultant who met Mrs McCabe on the day her will was amended, and from Professor Jacoby. It was subsequently determined that there was insufficient evidence to support Timothy’s notion to overturn the will.

This case is a further reminder to practising solicitors and practitioners to utilise the ‘golden rule’ when taking instructions from vulnerable clients, such as the elderly. The rule states that in order for a will to be valid, testamentary capacity must be present, and this may include seeking a medical practitioner’s opinion before acting on a client’s instructions. As always, those in the industry must take care and remember to record a full account of each meeting in case of a future dispute.

Figures show that numbers of people choosing to challenge wills are increasing. Mandeep Chima, a contentious probate solicitor from Access Legal, states that this ‘reflects the fact that more people are aware of the remedies that are available.’ Therefore, it is likely that testamentary capacity will continue to be a key issue when challenging the legitimacy of a will, and is something that practitioners need to be fully up to date with.

Let us know your thoughts on this case in the comments.