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McCabe v McCabe – High Court rejects claim to invalidate mother’s last will

on Thursday, 05 November 2015.

The recent case of McCabe v McCabe [2015] All ER 248, which concerned a dispute between two brothers over their late mother’s last will, sheds new light on the Court's approach when considering the test for testamentary capacity.

Shortly before her death, Mrs McCabe made a new will leaving all of her estate to her eldest son, Stephen, thereby disinheriting her other son, Timothy.  This was significantly different from Mrs McCabe’s prior will, which divided her estate equally between the two brothers.

Timothy argued that that his mother’s decision to disinherit him was motivated by a false belief she held, which was caused by her dementia.  This was based on the fact that his mother had encouraged Timothy  to report Stephen to the police for alleged financial abuse under her Lasting Power of Attorney.

Stephen was not subsequently charged for financial abuse.  However, his mother had forgotten that she had been the one who encouraged Timothy to report Stephen, due to her dementia, and this created a false belief that 'poisoned her affections' against Timothy.

In considering whether the mother's last will was valid, the Court found that the first three limbs of the well-known test laid out in Banks v Goodfellow were met.  However, this case focused in particular on the fourth limb of the testamentary capacity test, ie. whether, at the time of making her last will, Mrs McCabe was suffering from a disease of the mind that contributed to her false belief about Timothy.

A huge amount of evidence was heard, from medical experts, social services and the Court of Protection and key amongst this was the evidence provided by expert consultant, Professor Jacoby, who questioned whether Mrs McCabe had confabulated.  Professor Jacoby defined confabulation as, “a false memory in the presence of organic brain disease”.  This led  the Court to consider whether a false belief can be delusional or simply mistaken.  One of the main questions for the Court was whether the mother had held a false belief or confabulation which had led her to disinherit her son, Timothy.

This is a complex case which merits a read of the full judgment.  Suffice to say in summary though that, following its detailed examination, the Court held that Mrs McCabe was not suffering from a false belief at the time that she made her final will, despite suffering from mild dementia at that time.

The Court held that the mother was not delusional either, as she had been clear in her own mind as to why she had disinherited Timothy and was not suffering from a disease of the mind which invalidated her last will.  Accordingly, the will was upheld.

We routinely advise clients regarding challenges to wills and estate disputes and have a range of experience in this area.


For more information, please contact Marianne Nankervis on 0117 314 5494.

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