‘What litigants and lawyers can learn from McCabe v McCabe 
In this note all paragraph references are to the Official Transcript (171 pages).
Lessons. Facts. Allegations. State of mind. Witnesses of fact . Experts. Submissions. Conclusion. Order.
‘Both Dr Ardron and Professor Jacoby agreed that whilst it was for the court to determine the facts, the case appeared to hinge upon whether the decision to disinherit [the younger son] was, or was not, based upon confabulations…In all 1 TEP (www.ihtbar.com), author of The Advocate and Expert in a Testamentary Capacity Claim published in the Expert Witness Journal (Autumn 2015) 2 the circumstances, I conclude that [the testatrix ‘T’] decided to disinherit [her youngest son ‘D’] because she believed that he had initiated, without her agreement or authority, a police investigation into her affairs and finances which brought [her eldest son ‘C’] within its reach, and made allegations in respect of him which suggested that he had misappropriated her money. This was not a delusion or confabulation. Her belief was justified by what had happened.’ [Paragraphs 206 and 278 of the Official Transcript].
1. If only:
1.1 the Testatrix [T] had instructed a solicitor who knew and understood the requirements of the ‘Golden Rule’, litigation might have been avoided. The moral is instruct a will/trust draftsman who is a specialist in the field of wills and probate; and
1.2 the parties had mediated. I do not know what costs were incurred but the trial lasted 11 days and involved counsel and 2 experts.
2. Case theory. In their joint statement both experts concluded that, ‘the case appeared to hinge upon whether the decision to disinherit [T’s younger son D] was, or was not, based upon false beliefs of confabulations’. [Paragraph 206].
'T's view of D, argued Miss Berry, had clearly gone beyond the limit, when it had ceased to be a question of harsh unreasonable judgment and had become a repulsion which was so irrational as to precede from some mental defect.' [Paragraph 233].
As a matter of logic it is not axiomatic, that when T disinherited D she lacked testamentary capacity, because only a mother suffering from some mental defect would do that.
An eccentric disposition of property is not in itself evidence of incapacity, and it is the whole picture that needs to be looked at. Capacity may be lacking because of mental illness or because the testator is under the influence of drugs or alcohol. ‘More recent cases have modernized these formulations so as to be clear that a competent testator must be able to understand the effect of his wishes being carried out at his death, the extent of the property of which he is disposing, and the nature of the claims upon him.’ Jeffrey & anr v Jeffrey . Capacity depends on the potential to understand. It is not to be equated with a test of memory, Simon v Byford .
Judge Jeremy Cousins QC concluded,
‘...I agree with both counsel, and the medical expert witnesses, that the case on capacity therefore turns upon whether the decision to disinherit [D] was, or was not, based on false beliefs or confabulations. Upon that critical question, [the Will draftsman and expert witnesses] are not able definitively to assist because, in the words of Erskine J in Harwood v Baker at page 306, “all the other circumstances of the case [were] not known” to any of those professional men. The factual underpinnings for T’s beliefs was not known or investigated by Mr Madams [Solicitor] or Dr Ardron [expert witness] , and Professor Jacoby [expert witness] never met T and had no opportunity to make any investigations at all concerning her or his beliefs during her lifetime. In this respect, I accept Miss Berry’s submission as to the limitations upon the value of their evidence…’ [Paragraph 266].
3. What makes ‘an accurate and reliable witness,’ which I illustrate below with extracts from the Official Transcript, where the Judge comments upon the quality of witnesses of fact and the expert witnesses.
4. Appoint an expert who knows and understands the legal test elements of capacity necessary for a testator to make a will.
See also my article ‘The Advocate and the Expert in a Testamentary Capacity Claim’ (published in the Autumn edition of the Expert Witness Journal which is available to download on the ‘Publications’ page at www.ihtbar.com), which states,
‘In The Vegetarian Society & anr v Scott , HHJ Simon Barker QC stated that a key factor in preferring the evidence of the claimant’s expert was that he was ‘familiar with the elements of capacity necessary for a testator to make a will’ whereas the other party’s expert was not. Consequently the evidence of the preferred expert, ‘was the more focussed and helpful of the two.’ As Professor Robin Jacoby and Peter Steer remark in their article, ‘How to assess capacity to make a will’  British Medical Journal 335; 155-7, ‘Much litigation could be avoided… if, doctors, when asked by solicitors, assessed testamentary capacity correctly.’
5. The impact of lack of record keeping and breach of good practice by an expert on the weight to be attached to his evidence.
6. MMSE Tests. 'I found Professor Jacoby to be an impressive witness. He had clearly given much thought to the problems associated with how best to assess capacity. He was able to speak authoritatively on the subject of the limitations inherent in the MMSE tests.' [Paragraph 47]. ‘In crossexamination…Professor Jacoby…said that MMSE tests were designed as 5 a screening test, and that they have grave disadvantages in assessing the severity of dementia, so that a score of 27 in a highly intelligent person could conceal that she was suffering from dementia. The tests were, he said, heavily weighted in favour of memory, and hardly at all to the executive function. He described the need when assessing capacity, to take a full history and to conduct a mental state examination, including an MMSE. He preferred to make use of the Addenbrooke’s Cognitive Examination (“ACE”) which was marked out of 100. He said that he had, on many occasions, seen MMSE scores that were normal, where the ACE score was well below that level for the same patient. He said that the ACE test was more sensitive and specific, so that they were more accurate in identifying true positives and negatives, whereas the MMSE tests were more vulnerable to suggesting false positives. A score on the MMSE test of 24-20 was consistent with mild dementia, 20-15 with mild to moderate, 15-10 with moderate to severe, and below 10 with severe dementia. In his view the MMSE test did not equate to capacity at all. He said that the pattern of errors made by a patient could be important, because it could reveal a degree of dementia greater than was otherwise apparent. To make an assessment, he said, that he would wish to see a patient and an independent informant.’ [Paragraph 195].
7. A belief is not a 'delusion' or 'confabulation' if it is justified by what caused it to be formed, i.e. by something that has actually happened. ‘This was not a delusion or confabulation. T’s belief was justified by what happened.’ (Paragraph 278 of the Official Transcript).
If the parties had grasped this point from the outset they should have been advised in the strongest possible terms to settle, and may have been. 6 In the Chancery Division a lengthy trial can now be avoided by applying for an ENE of a central ‘hinge’ issue.
From 1 October 2015, CPR 3.1(2)(m) has been amended by the Civil Procedure (Amendment No.4) Rules 2015 to provide,
‘(2) Except where these Rules provide otherwise, the court may – (m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case’. This is a rule of general application which applies to contentious probate claims in the County Court, and in the Chancery Division of the High Court. Pending an ENE Practice Direction, guidance about the proper approach to directing an ENE and carrying it out, can be drawn from the TCC and Admiralty and Commercial Court Guides. By way of a benchmark, the Commercial Court and TCC fee for an ENE (including pre-reading by the ENE Judge) is £155, which is payable by one party. There will also be a fee for hiring a break-out (i.e. consultation) room, which e.g. in the TCC for a whole day, i.e. 9am-5pm, is between £100-200 (depending upon the size of the room).
8. Testamentary capacity. ‘Those tempted to mount challenges in similar circumstances, however difficult it must be for them to come to terms with their dismay at the dispositions actually affected by the will of another, often a loved one, would do well to bear in mind the note of caution sounded by Neuberger MR at para 16 in Gill v Woodall:
“Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could 7 not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.” [Paragraph 312].
• From second half of 2009 the testatrix T was suffering from cognitive impairment.
• Younger son D disinherited in favour of older son C under terms of 2nd Will executed 5.4.2011 (2011 Will) by T.
• T died 3.11.2011.
• Caveat entered by D 21.12.2011.
2nd Will not executed in compliance with Wills Act 1837 (because not witnessed in accordance with statutory requirements) – formal validity challenge, which failed at trial.
T lacked capacity – testamentary capacity challenge, which failed at trial.
T did not know and approve contents of Will – knowledge & approval challenge, which failed at trial.
Declaration in the alternative that T was incapable of making an informed decision as to whether or not to make lifetime gifts or to convert loaned monies into gifts – had no practical substance, and also failed at trial.
State of mind
• ‘In order to try to preserve good relations with both sons, at times she resorted to saying what she believed the son present with her would wish her to hear.’ (View of her GP and a ‘perceptive’ nurse from the local community mental health team) [Paragraph 13].
• ‘I consider that T found it very difficult to confront either of her sons. She might well have known what she wanted to achieve, or resist; her problem was how to achieve her wishes without confronting, and possibly alienating, one of her sons…Her problem was in dealing with them. This is something which I have to keep in mind when considering how events developed in 2009 to 2011.’ [Paragraph 14]. NB undue influence and coercion were not pleaded by C or D.
Witnesses of fact
Stephen McCabe [C]
• ‘Stephen’s credibility, and his financial integrity, was the subject of detailed examination and criticism as the trial developed…I do not consider that he took improper financial advantage of his mother, though he was willing to accept her generosity.’ [Paragraph 18].
• ‘Stephen was extensively cross-examined as to the manner in which he had dealt with his mother’s bank account after she died. I need not say more than that I am not satisfied that Stephen was guilty of any dishonesty.’ [Paragraph 20].
• ‘Despite Miss Berry’s very careful and thorough attack on Stephen’s character and credibility, I find that he was a truthful witness, in that he 9 tried to recall events as accurately as he could…On material matters I am satisfied that his evidence was accurate.’ [Paragraph 22].
Timothy McCabe [D]
• ‘Timothy is a police officer with more than 25 years service behind him…In 2007 and 2008, Timothy had responsibilities for the department in the Leicestershire Police Force which dealt with safeguarding vulnerable adults.’ [Paragraphs 22 and 23].
• ‘…in my judgement, his approach to his concerns about Stephen’s dealings with his mother did not make adequate allowance for the fact that he had a very sensitive family situation with which to deal, in which involving police colleagues and the making of formal reports, or complaints, was likely to lead to heightened tensions in an already highly charged environment.’ [Paragraph 24].
• ‘…there are several instances where I have been unable to accept Timothy’s evidence on important, and crucial matters…I consider that the explanation for the unreliability of Timothy’s evidence on matters at the heart of this case is that over the years since the rift with his brother which had its origins in 2009, and became total in 2010, he has convinced himself of another version of events.’ [Paragraph 32].
Dr Lucy Pearson [T’s GP from August 2001]
• ‘My impression of Dr Pearson, based upon the records that she maintained, and the manner of her giving evidence, was that she was a careful, caring, and thoughtful practitioner. She was also shrewd in her assessment of the difficult family situation in which her patient found her herself, observing in cross-examination that she believed that Mrs 10 McCabe had tired of many years of mediating between her sons, and that she “had to ignore it”. I am entirely satisfied that Dr Pearson was not biased in favour of, or against, either Stephen or Timothy. Her concern was to put her patient’s interest first. She was a reliable and accurate witness.’ [Paragraph 37].
Mr David Madams [T’s solicitor who drafted the 2011 Will]
• ‘Mr Madams could not be described as a specialist solicitor in the field of wills and probate. He was aware of the “golden rule” in the sense of knowing that it was prudent to retain a medical practitioner as a witness of a will in the case of an elderly or infirm person if in any doubt as to incapacity, but…he was not familiar with what was required as was described by Briggs J, as he then was, in Key and another v Key  1 WLR 2020, at paras 6-9. Equally he was not familiar with The Assessment of Mental Capacity, Guidance for doctors and lawyers published by the British medical Association and the Law Society.’ [Paragraph 40].
• ‘…very properly he adopted a position of neutrality. I had no doubt about Mr Maddams’ integrity as a solicitor, or as a witness. I was entirely satisfied that he did his best to remember the matters relevant to his evidence, and to recount them as best he could. I was impressed by the manner in which he conceded that he might well not have wished to proceed with his instructions relating to the 2011 Will had he appreciated more about T’s medical history, and by his willingness to acknowledge any gaps in his knowledge of the law, or familiarity of publications relating to wills and probate practice. Such concessions, whilst they may detract from his expertise, demonstrated that he took very seriously his task of assisting the court to establish the truth of matters of great 11 importance. I found him to be an accurate and reliable witness.’ [Paragraph 41].
Dr Mark Ardron
• ‘…has not received specific clinical training in capacity assessment.’ [Paragraph 42].
• ‘…he had not been provided with any information as to T’s medical history, that he had not been provided with a summary of the common law test for testamentary capacity, and that he was unaware of the Banks v Goodfellow requirement that a testatrix should understand the extent of the property of which she is disposing by will. He similarly acknowledged that this was, therefore, not a topic about which he asked Mrs McCabe. Despite these drawbacks, and other criticisms of Dr Ardron…I found him to be a conscientious, astute, and careful practitioner’ [Paragraph 43].
• ‘Dr Ardron, as well as being an expert witness as to Mrs McCabe’s capacity, was also a factual witness as to the execution of the 2011 Will. In this respect I found him to be measured and careful. I found him to be truthful and reliable.’ [Paragraph 45].
• ‘I accept that it would have been preferable if Dr Ardron had kept a fuller record of his contemporaneous notes, and the documents produced in connection with the tests he carried out on the day that the 2011 Will was executed. It would have been preferable if Dr Ardron had made his report sooner than he did in 2011. However, I do not consider that his general methodology (for which he gave cogent reasons) which did not involve the use of printed score sheets, and his practice of keeping notes made in 12 front of a patient to a minimum, can be criticised. Different specialists will develop their own techniques, and provided they are based upon sensible reasons (which Dr Ardron’s were), they can be justified even if they are not universally adopted.’ [Paragraph 281].
• See also paragraphs 179-189 and 281-283.
Professor Robin Jacoby
• ‘Professor Jacoby is Professor Emeritus of Old Age Psychiatry in the University of Oxford. He is a Fellow of the Royal College of Physicians, and a Fellow of the Royal College of Psychiatrists. He is senior editor of the Oxford Textbook of Old Age Psychiatry, and a contributor to Williams, Mortimer, & Sunnucks – Executors, Administrators and Probate, 20th edition. Apart from these major contributions to the learning in his areas of expertise, he has published widely in his subject as a contributor to other leading texts and journals. There can be no doubting his erudition in the fields of assessing capacity for the making of wills, and in those suffering from dementia.’ [Paragraph 46].
• ‘I found Professor Jacoby to be an impressive witness. He had clearly given much thought to the problems associated with how best to assess capacity. He was able to speak authoritatively on the subject of the limitations inherent in the MMSE tests…He displayed not only a technical mastery of the matters on which he had been asked to express his opinions, but he was also very realistic in his approach to assisting the court with relevant evidence. Thus, whilst conscious of the separate functions of an expert witness and a trial judge, and appreciating that it was for the court to determine what were the issues in the case, he correctly in my view, conceded in his report that T’s dementia was insufficiently severe to have prevented [her] from understanding the 13 nature and consequences of the act of making a will in general, or of the 2011 Will specifically. Similarly, whilst not feeling himself able to express an opinion on whether T appreciated the extent of her estate, he acknowledged that had she been reminded of it at the time that she gave instructions, she would probably have been able to retain that information for a sufficient length of time to make her testamentary decision’ [Paragraph 47].
• ‘I am entirely satisfied that Professor Jacoby, like Dr Ardron, fully understood his duties to the court as an expert witness, and faithfully discharged them to the best of his ability. However, I have to bear in mind that Professor Jacoby was at a considerable disadvantage as against Dr Ardron in that he had not met T when she was alive, unlike Dr Ardron who had within a period of a little more than 18 months tested her capacity on two separate occasions.’ [Paragraph 48].
• See also paragraphs 190-206.
• ‘Professor Jacoby expressed his opinion that it was unwise practice to discard paper records of any sentence written, or shapes drawn, something which Dr Ardron concedes is the likely explanation for his inability to produce them. Good practice, in my judgment, certainly requires that reasonable efforts are made to retain records of this kind. It is clearly foreseeable that for some considerable time after a capacity assessment is undertaken, access to the records that might be relied upon to support its result might be required in proceedings of this kind. One of the purposes of having a capacity assessment is to reduce the risk of later challenge; the loss, or destruction of records, does not serve that end. Any failure to adhere to good practice is clearly something which I have to take into account in my assessment of Dr Ardron, and in respect of the 14 weight that I can attach to his evidence, but the fact that good practice has not always been followed does not in itself prove that the conclusions reached by the practitioner whose assessment is challenged are wrong.’ [Paragraph 200].
• ‘Both Dr Ardron and Professor Jacoby agreed that whilst it was for the court to determine the facts, the case appeared to hinge upon whether the decision to disinherit D was, or was not, based upon confabulations.’ [Paragraph 206].
• ‘…Miss Berry submitted that the central question was whether T’s extreme dislike of D, to the point that she disinherited him, was irrational. She maintained that it was having regard to the years of love, affection and kindness that had flowed between D and his mother… T’s view of D, argued Miss Berry, had clearly gone beyond the limit, when it had ceased to be a question of harsh unreasonable judgment and had become a repulsion which was so irrational as to precede from some mental defect; she cited Boughton and Marston v Knight (1873) 3 P & D 64 at 69.' [Paragraph 233].
• ‘Mr Holland, starting with the principles established in Banks v Goodfellow, emphasised that testamentary freedom is a basic principle of English law, so that it is only where there is clear evidence that the questioned will does not represent the “authentic self” of the testatrix that the court should intervene.’ [Paragraph 243].
• ‘With regard to whether T suffered from a delusional belief, Mr Holland emphasised that it must be one which no rational person could believe, and that it must be shown to be impossible to reason the patient out of the 15 belief; see Williams on Wills, 10th edition, para 4.15 and the cases there cited. In order to establish a lack of testamentary capacity, it must, submitted Mr Holland, be demonstrated that T held a false belief, which was untrue, that it was delusional and caused by dementia, and that was causative of the disposition.’ [Paragraph 247].
• ‘Mr Madams evidence very clearly suggests that T knew and understood the contents of the 2011 Will, and that it did represent her testamentary intentions. Dr Ardron’s evidence is also strongly supportive of the same conclusion. His contemporaneous manuscript note explicitly recorded that she was able to explain the implications of signing the new Will, that she had considered the consequences, and that she was able to explain them to Dr Ardron. Express reference was made to upsetting D and the dispute with him as the reason for the change…She did not merely passively go along with a draft will that was proffered to her. She actively gave instructions as to what its content was to be.’ [Paragraphs 298 and 299].
• ‘…I agree with counsel, and the medical expert witnesses, that the case on capacity therefore turns upon whether the decision to disinherit D was, or was not, based on false beliefs or confabulations. Upon that critical question, Mr Madams, Dr Ardron and Professor Jacoby are not able definitively to assist because, in the words of Erskine J in Harwood v Baker at page 306, “all the other circumstances of the case [were] not known” to any of those professional men. The factual underpinnings for T’s beliefs was not known or investigated by Mr Madams or Dr Ardron, and Professor Jacoby never met T and had no opportunity to make any investigations at all concerning her or his beliefs during her lifetime. In 16 this respect, I accept Miss Berry’s submission as to the limitations upon the value of their evidence…’ [Paragraph 266].
• ‘Considering all of the relevant evidence in the case, I reach the conclusion, quite firmly, that T was not irrational or deluded in her belief that D had initiated an investigation by the police and other agencies into her finances, without her authority. She most definitely had not done so in relation to anything that might suggest that C had been implicated in any impropriety…I accept C’s evidence that his mother was distraught when he told her that the police wished to interview him.’ [Paragraph 277].
• ‘In all the circumstances, I conclude that T decided to disinherit D because she believed that he had initiated, without her agreement or authority, a police investigation into her affairs and finances which brought C within its reach, and made allegations in respect of him which suggested that he had misappropriated her money. This was not a delusion or confabulation. Her belief was justified by what had happened.’ [Paragraph 278].
• ‘In all the circumstances, whilst fully taking into account all the factors which raise a doubt as to capacity so as to shift the evidential burden of proving the same upon C, I am satisfied that he has discharged that burden, and that T did have capacity to make the 2011 Will.’ [Paragraph 285].
• ‘In her closing written submissions, Miss Berry submitted that in the event that I should pronounce against the 2011 Will, then D would seek a declaration that, from 14 March 2011, T was incapable of making an informed decision as to whether or not to make gifts to C or to convert loaned monies into gifts. Since I have pronounced in favour of the Will, 17 there is no practical substance in this point as C is entitled to the entirety of the estate. I shall deal with the issue which has been raised as to the validity of the gifts, however, in case I am wrong with regard to the conclusions which I have reached above…In relation to all of these gifts, I am satisfied that T had the capacity to make them. She recorded in her own writing the fact of making the gifts. She was on each of these days visited by care agency workers who noted that she was “ok”…I conclude that whilst later in May her condition did deteriorate, the probability is that during the part of that month, when gifts to C were made, T’s capacity was much the same as it had been when it was assessed by Dr Ardron in early April. It was adequate for the purposes of making the gifts mentioned.' [Paragraphs 305 and 311].
'...none of the challenges to the 2011 Will has succeeded, and accordingly I pronounce in favour of it, and direct that the caveat entered by D be vacated. The counterclaim is dismissed. I will deal with the form of order, and any other consequential matters, when I hand down this judgment.' [Paragraph 314].