McHale & Co. Solicitors Blog

Dangers of DIY Wills – Is your Will valid?

A recent High Court case gave us yet another insight into how disputes in bereaved families are tragically common. An eleven day, bitterly contested probate dispute between two brothers came to its climax in the recent months. A gentleman named 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 McCabe; a dramatic change from her Will made 4 years previous. Timothy claimed that his mother lacked the testamentary capacity required to make that Will and that it was therefore invalidly executed.

The intriguing element of this landmark case, was the nature in which the Court explored the parameters of testamentary capacity. The golden rule of capacity was created way back in 1870, yet the Courts discussed new issues of confabulation and sequestration which offered fresh insight into problem areas in cases of elderly testators.

Timothy’s case was based upon the fact that Mrs McCabe was motivated by a false belief caused by her Alzheimer’s disease at the time of making the last Will. He believed that Mrs McCabe was suffering from a disease of the mind that poisoned her affections towards him and it was these false beliefs which were the cause of her decision to disinherit him. This left the following questions for the Court to decide: 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? 

Timothy had claimed that his mother confabulated (defined as a false memory in the presence of organic brain disease) greatly in all areas of her life, which confused her and caused her to forget his moral claim to her bounty. However the court held after extensive deliberation that for a false belief to be delusional it must be one which no rational personal could hold and one which it is not possible to reason the person out of.

The court was also asked to deal with the question of sequestration, as Timothy and his mother were permanently estranged following previous events. Timothy claimed that his mother was sequestered by Stephen, causing her to develop an antagonism toward Timothy thereby poisoning her affections. On this issue 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. The court examined multiple times where Mrs McCabe stated that she did not want to see Timothy and, though she once wanted to divide her estate, she could not forgive past events.

After extensive evidence from a range of different witnesses and despite it being accepted that Mrs McCabe had been diagnosed with mild dementia before she made her last will, it was held that she had been clear in her mind that she did not want to provide for Timothy. Her decision was held to be neither the result of a false or insane belief, confabulation or sequestration.

The death of a loved one is undoubtedly an arduous time and the last thing that family members want is for that death to be exacerbated by the prospect of a family feud. To ensure peace of mind that your Will is validly executed and your wishes will be carried out; contact us now at mch@mchaleandco.co.uk or on 0161 928 3848.

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