A recent High Court judgment in a bitterly contested probate dispute gives fresh insight into the approach of the court when evaluating the reason for a change in a will where the question of testamentary capacity is in the balance.

The case, McCabe v McCabe [2015] EWHC 1591 (Ch), was a dispute between two brothers over their mother’s will and lasted 11 days. Jeremy Cousins QC found that although the testatrix had dementia, her decision to disinherit one of her sons was not caused by false beliefs and therefore her will was valid.

The case raises key issues for practitioners, including the value of expert evidence on false beliefs, the extent to which the professional has to investigate whether a belief is false, and whether a false belief must be delusional or, simply, mistaken.


Mrs McCabe had two sons, Stephen and Timothy, with whom she had been close. Brotherly relations had long been strained but acrimony intensified when Mrs McCabe revoked her power of attorney given to Timothy. Timothy had reported his brother to the police for allegedly financially abusing their mother under a Lasting Power of Attorney. Stephen denied the allegations and was never charged.

In March 2011, she gave instructions to a solicitor for a new will which left everything to Stephen. She radically departed from the will she had written four years earlier, which had divided her estate equally between the brothers. 

Stephen applied to prove the 2011 will after Timothy entered a caveat following Mrs McCabe’s death. Timothy unsuccessfully challenged the will on three grounds: lack of testamentary capacity, want of knowledge and approval and undue execution.

Expert evidence

The case on capacity turned on whether Mrs McCabe’s decision to disinherit Timothy was motivated by a false belief caused by her dementia. Timothy alleged that his mother had encouraged him to report Stephen to the police and had then forgotten due to her dementia, thus creating a false belief that poisoned her affections. 

The court heard evidence from the consultant who saw Mrs McCabe on the day the will was executed and from Professor Jacoby, who had never met her. The expert evidence was insufficient to support Timothy’s plea of false belief because the experts had not known or investigated the factual underpinning for Mrs McCabe’s beliefs.

In fact, the court held that Mrs McCabe did not falsely believe that she had encouraged Timothy. Her awareness of the report after it was made did not denote approval. Timothy sought to argue that her failure to resist the personalities of her sons showed a lack of mental energy consistent with lack of testamentary capacity, but this did not succeed. Mrs McCabe did not capitulate and expressed her feelings very strongly to her solicitor, doctor and social worker.

Family history

The judgment suggests that when complying with the ‘golden rule’ the solicitor should instruct the doctor to investigate factual matters that would be before the court. Probate practitioners who anticipate a will challenge might therefore ask the doctor to consider the origin of the beliefs that seem to motivate the testamentary deposition. This suggests intense medical analysis.

Whilst that might not be practicable, a detailed note of the conversation with the testator about his/her family background is advisable.

This is likely to prove useful for the court’s analysis of the testator’s reasons and beliefs.

Is a false belief a delusion?

How do solicitors and doctors tell if a belief is false and if that false belief is delusional? Should they be carefully deconstructing opinions and beliefs held by aged clients to determine if they are rational? Of course not, it is impossible and not determinative. The subjectivity of truth is perfectly demonstrated by the judge’s remark that Timothy believed his truth, though it was wrong. And even though there are shortcomings in best practice, the court ultimately decides where the truth lies.

Whilst probate lawyers should do their best to faithfully record their impressions and conversations with the testator, it is helpful to bear in mind the parameters of the legal test for testamentary capacity in Banks v Goodfellow as explored in this judgment: 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.

Beth Holden is a dispute resolution solicitor at Anthony Gold. Beth acted for Stephen McCabe in the case against his brother.