The case of McCabe v McCabe [2015] EWHC 1591 (Ch) was a bitter contentious probate dispute between two brothers that lasted 11 days.

Background

Leicestershire police officer Timothy McCabe was disinherited by his mother shortly before her death. Mrs McCabe had made a new will leaving all of her estate to her eldest son Stephen. Timothy claimed that his mother lacked testamentary capacity to make that will, did not know or approve its contents, and that it was invalidly executed. Timothy applied to prove an earlier will that divided the estate equally between the brothers.

Timothy’s case failed on all counts, but it is the testamentary capacity challenge which is really interesting. New issues of confabulation and sequestration offer fresh insight in to problem areas in cases of elderly testators. I acted for Stephen and will take you through Timothy’s challenge and explain why it did not succeed.

Legal test

We start with legal test for testamentary capacity set out in Banks v Goodfellow. The first three limbs were uncontroversial; it was accepted that Mrs McCabe knew and understood the act and effect of making a will and of the property she was disposing. The case turned on the fourth and final limb; whether, at the time of making the last will, Mrs McCabe was suffering from a disease of the mind that poisoned her affections towards Timothy.

Specifically this case was about whether Mrs McCabe held false beliefs or confabulated and whether those were, wholly or partly, the cause of her decision to disinherit one son. Questions for the Court were: did Mrs McCabe hold a particular belief? Was that belief false? Was the false belief caused as a result of a disease of the mind? If so, was it what was causative of the testamentary disposition?

There was a litany of evidence that provided possible answers. The Court examined notes from Mrs McCabe’s doctors, social services, the community mental health team, police, Court of Protection, her solicitor, and heard evidence from both her sons, among others. Expert opinion was given by Professor Jacoby and a consultant geriatrician.

Timothy’s Counsel challenged the quality of Stephen’s expert evidence and the practice of Mrs McCabe’s solicitor who prepared the will. They both gave evidence about their meetings with Mrs McCabe and how she presented. The ‘golden rule’ was not strictly followed and there were aspects of the doctor’s practice, such as discarding some of his notes, which were not ideal. But, in both cases the professionals had met with the deceased which is preferable to after the event opinion (Hawes v Burgess). The Court followed Key v Key thus non-compliance with the ‘golden rule’ was not a bar to upholding the will. The questions asked of the testatrix by the professionals are important, but as the judge commented in this case, it would be difficult for a doctor to investigate the correctness of Mrs McCabe’s belief. The questions are ones for the court taking in to account the doctors’ opinions.

Analysis

Did Mrs McCabe believe that Timothy had referred Stephen to the police for financially abusing her? Furthermore, did Mrs McCabe believe that she had not given Timothy her authority or consent to make this referral?

The crux of Timothy’s claim was that his mother had authorised the referral of his brother to the police, but had forgotten as a result of her dementia. It was accepted that Mrs McCabe had been diagnosed with mild dementia before she made her last will. It was also established that Timothy had referred his brother to the police; Stephen was interviewed but not charged. Timothy claimed that his mother’s dementia was moderately severe and resulted in her belief that she had not consented to his actions, and had thereby irrationally poisoned her affections towards him.

In attempting to prove the falseness of the belief Timothy relied on records of an appointment with Mrs McCabe’s GP which he attended with her. The medical notes confirmed that he raised his concerns about her financial affairs with the doctor. However, Timothy had made the referral to the police before the appointment and the extent of the allegations that were made to the police about Stephen were not discussed in Mrs McCabe’s presence. This weighed against his claim, but Timothy maintained that his mother held a number of delusions about her finances, herself, and her family history, which led to inability to recall things.

In Professor Jacoby’s opinion, if Mrs McCabe was found as a matter of fact to have false beliefs, they could not be described as delusional within the fourth limb of Banks v Goodfellow, ieaninsane delusion. This was good evidence for Stephen to rebut Timothy’s claim, but Professor Jacoby added in to the mix the question of whether Mrs McCabe confabulated, giving the court cause to address whether a false belief is delusional or simply mistaken.

Professor Jacoby defined confabulation as a false memory in the presence of organic brain disease. It is not delusional, he explained, because the patient would actually ‘remember’ it, even though it did not happen. He suggested that Mrs McCabe confabulated about a belief that Timothy wished to move her to Yorkshire. Fastening on this point Timothy claimed that his mother confabulated greatly in all areas of her life, which confused her and caused her to forget his moral claim to her bounty.

Timothy had not pleaded that confabulation about moving to Yorkshire was causative of the disposition, but in the event it did not assist his case. The court held that for a belief to be false it had to be delusional. There was no medical evidence that Mrs McCabe confabulated about the police referral, or was delusional. On the contrary, a consultant geriatrician who saw her on the day that she executed the will confirmed that she had capacity. The Court rejected Timothy’s submission that a false belief in the sense of a misunderstanding was relevant to the legal test for capacity. Timothy tried to argue that Professor Jacoby had meant that the term insane delusion narrowly applied to cases where the deceased was schizophrenic, as in Banks v Goodfellow, but this was not the correct interpretation.

Underlying the debate about whether a false belief is delusional or simply mistaken, there is a lesson to be learned. Mrs McCabe had made a number of statements to her social worker and mental health team about what happened to Stephen. One note in particular recorded her saying that Stephen had been jailed, which was factually untrue. Timothy asserted this false statement was evidence of her delusional belief, but the Court held that it was much more likely to have been a misunderstanding.

Serious matters such as loss of liberty, or potential loss of liberty are things fairly easily confused in the mind of an elderly, worried, apprehensive parent. Practitioners should consider the possibilities of misinformation being supplied by an elderly testator through anxiety or natural confusion. Over reliance on a note by a third party could be risky, even if made contemporaneously. Care should also be taken where the situation might require a level of sophistication and knowledge to understand. In this case Timothy claimed that the initial police referral was not classified as a crime, but the court held that Mrs McCabe would not have understood that and so her belief in a criminal investigation was not irrational or did not prove that she was delusional. Practitioners should also check whether the testatrix actively held the core belief at a later date, as a defining characteristic of a delusion is that the person cannot be persuaded or reasoned out of it.

The court also had to deal with the question of sequestration, another issue raised by Professor Jacoby, reasoning that Timothy and his mother were permanently estranged after she discovered that Stephen was to be interviewed by the police. Timothy claims that his mother was sequestered by Stephen, which Professor Jacoby suggested could have caused her to develop an antagonism toward Timothy (thereby poisoning her affections) which was based less in reality than it should have been. He stated that sequestration would not be a concern if the vulnerable person kept their distance of their own initiative.

On this issue the court heard the evidence of Mrs McCabe’s GP, who stated that Mrs McCabe would do what she thought would make whichever son she was with at the time happy. Timothy suggested that Stephen overpowered their mother and suppressed her initiative. The court considered whether Mrs McCabe had the mental energy to resist her sons and make decisions of her own, which is a feature of capacity in elderly people. Mrs McCabe stated many times that she did not want to see Timothy and, though she once wanted to divide her estate, she could not forgive what he had done.

Conclusion

It was held that Mrs McCabe was not suffering from a false belief. It was established that Timothy had referred Stephen to the police without her authority, but in any event she was not delusional. Accordingly, she had been clear in her mind that she did not want to provide for Timothy and this was neither the result of a false or insane belief, confabulation or sequestration.

---

Beth acted for Stephen McCabe in the case against his brother.