It is time for reflection on the successes and lessons of 2015.  It was an important year for our Contentious Probate department. We were listed in the Legal 500, having gone from strength to strength. And I won the widely publicised case McCabe v McCabe [2015] EWCH  1591, a contest between two brothers about their mother’s will.

I acted for Stephen McCabe who applied to prove the Will of his elderly mother Mrs McCabe. Mrs McCabe had left her entire estate to Stephen, having fallen out with her other son Timothy before she died. Timothy challenged the Will saying that his mother was not mentally capable of making it, had not known or approved of its contents, and that the Will had not been properly signed and witnessed in accordance with the Wills Act.

The facts were that the Will had been prepared by a solicitor, and Mrs McCabe had seen a doctor on the day she signed it. That doctor had previously assessed her as having mild dementia (she was in her 80s), but he concluded that it did not prevent her from making a Will on that day.  That doctor had also signed his name as a witness to the Will.

Under English law a person can leave their estate however they wish and are presumed to have capacity unless there is very clear evidence to the contrary. Timothy therefore had to prove that his mother was not of sound mind by applying the well-known Banks v Goodfellow test.  Timothy claimed that his mother falsely believed that Timothy had done something that upset her. He claimed that this was owing to her dementia, meaning that she was not of sound mind so her Will should be declared invalid. If Timothy had won, he would have got half of her estate.

The case was fraught with conflicting evidence about Mrs McCabe’s state of mind when she gave instructions. Did Mrs McCabe hold the alleged false belief? Was the belief false? Was it untrue? Did it cause Mrs McCabe to leave Timothy out of her Will?   

Timothy relied on a medical expert, who had not seen Mrs McCabe. The Court heard evidence from social workers, carers, Mrs McCabe’s GP, her solicitor, and even a police report. The trial lasted 11 days.

The Court dismissed Timothy’s claim and pronounced in favour of the Will. Timothy did not have strong enough evidence to support his case that Mrs McCabe was suffering from a delusion.

The case raised interesting issues about the way the Court will approach a complex family and medical history to get to the bottom of what an elderly person actually thought at the time they made a Will.

It also examined interesting issues around whether a false belief amounts to incapacity. It is not enough to be wrong, the false belief must be delusional in order to satisfy the Court that a person making a will did not have mental capacity. Problems with memory and confusion do not necessarily lead to a lack of testamentary capacity.