Contentious Trusts and Probate Monthly Round-Up: September

15 September 2015

McCabe v McCabe and other [2015]

The High Court upheld will of testatrix suffering from Alzheimer's disease when the will was executed. Mrs McCabe made a new will shortly before her death leaving all of her estate to her son Stephen McCabe replacing an earlier will that divided the estate equally between Stephen and her other son Timothy McCabe. Timothy claimed that the will was not validly executed, that his mother lacked testamentary capacity to make the new will and that she did not know or approve its contents. His challenge failed on all three grounds.

The third limb of the three part test for testamentary capacity laid down in Banks v Goodfellow was central to the decision. The court asked was Mrs McCabe able to comprehend and appreciate the claims to which she ought to give effect and not affected by any disorder of the mind that influenced her will in disposing her property, more specifically was her decision to disinherit her son based on false beliefs and confabulations.

The case rested heavily on expert evidence. The Court held that Mrs McCabe was not irrational or deluded nor was she affected by a delusion or confabulation at the relevant time. Mrs McCabe was clear in her mind that she did not want to provide for Timothy. 

Dangers of DIY wills 

A study carried out by Saga Legal Services showed that a quarter of people who have made a will (believed to be only 40% of the UK's population) have done so without any help from a legal professional. A DIY will significantly increases the risk of the will being declared invalid. A Will can be contested on the basis that it is invalid by relying on one or more of the following grounds:

  • the Will has not been correctly executed;
  • the testator lacked the necessary mental capacity;
  • the testator lacked knowledge or approval of the contents of their Will;
  • the testator was subject to undue influence;
  • the Will is forged/fraudulent.

Whilst instructing a professional to prepare your will does not guarantee that problems will not arise it significantly reduces the risk of potential disputes. If you are on other side of the coin and suspect that a Will is invalid (or were financially dependent on the deceased and consider that reasonable financial provision has not been made for you) you should also instruct a solicitor. For more information read our frequently asked questions on wills, trusts and inheritance disputes. 

HCS Trustees Limited and another -v- Camperio Legal and Fiduciary Services Plc and another (unreported)

The Guernsey Royal Court is reported to have confirmed that Hastings v Bass relief is available under Guernsey law. The original Court of Appeal decision in Hastings v Bass [1975] enabled trustees (and other fiduciaries) to apply to the court to set aside as void a decision if the trustees had failed to take into a relevant consideration or taken into account an irrelevant consideration. The scope of the rule was significantly curtailed in the cases of Futter v Futter and Pitt v Holt where the court ruled that trustees will not be in breach of their fiduciary duty, and their acts will neither be void nor voidable, provided they take appropriate advice, even if the advice turns out to be wrong. In the case before the Guernsey Royal Court the trustees had failed to take advice and therefore there was a clear breach of fiduciary duty which did not necessitate any further analysis of the scope of the Hasting v Bass rule.

Should you wish to discuss a disputed Will or Trust, please do not hesitate to contact our Wills, Trusts and Inheritance Disputes team

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