Will Dispute Over The Estate Of Terence Benedict McQuaid

In the recent case of McQuaid v McQuaid 2022 NICh 18, heard by the High Court of Justice in Northern Ireland, the Will of Mr Terence McQuaid, who was 73 at the time and being treated in hospital for terminal cancer and experiencing bouts of intermittent confusion, at the time the Will was executed was upheld.

McQuaid v McQuaid & Ors (Re Estate of Terence Benedict McQuaid) [2022] NICh 18

Case background

Mr McQuaid’s Will was drafted by a Solicitor who was a long-term friend on 17 July 2018, leaving the entire estate to his wife. Mr McQuaid executed his Will on the same day. On 23 July 2018, he was discharged to palliative care where he died on 30 July 2018.

Mr McQuaid’s son challenged the Will, on the grounds that the Solicitor had not sought an opinion on Mr McQuaid’s testamentary capacity from the clinical staff at the hospital.

Mr McQuaid had been described as ‘suffering from intermittent confusion’ in the week before he had been admitted to the hospital and whilst in hospital, there were several further entries referring to ‘increased confusion’ and a specific entry to ‘hallucinations that somebody wants to kill him’ in his medical notes. Mr McQuaid also had a diagnosis of urosepsis of which a known symptom is the inability to think clearly.

Two expert reports from consultant psychiatrists, following a review of Mr McQuaid’s medical notes and records, were put before the Court. Their review concluded that no formal cognitive assessment had taken place, but they agreed that Mr McQuaid met the golden rule and there was no basis to say that he lacked testamentary capacity, although a formal assessment ought to have been undertaken. One of the experts’ opinions was that the confusion was due to the severe infection he was suffering from and that the change in antibiotics brought a rapid improvement in his condition. Which was accepted by the Judge. There was no suggestion in the medical records that he had any signs of dementia.

The Solicitor had dictated an attendance note on the evening the Will was executed and said as an experienced Solicitor he had no reason to doubt Mr McQuaid’s testamentary capacity and did not consider that he should need to seek an opinion from medical staff.

The Judge concluded that ‘Whilst the deceased was clearly unwell and hospitalised, there were no other “red flags” …There was no requirement therefore for the solicitor to seek any medical opinion and no breach of the so-called “golden rule”‘ and therefore accepted that the solicitor had taken all reasonable steps to satisfy himself that Mr McQuaid had testamentary capacity.’

In addition, there were several families and professional witnesses who claimed that Mr McQuaid had capacity. The witness evidence from one dissenting family member was rejected by the Judge as he concluded that she was motivated solely by her own personal financial gain and not any desire, to tell the truth.

The Judge concluded that he had no doubt that Mr McQuaid enjoyed testamentary capacity when the Will was executed and rejected, and the Will admitted for probate.

In conclusion

Here the Judge put weight on the solicitors’ evidence stating that he was fully cognisant of the duties placed on a solicitor when dealing with the affairs of an elderly or unwell client. He had also known Mr McQuaid most of his life and regarded him as a close friend. The Judge, even though no formal assessment of capacity had been undertaken, was entirely persuaded by the Solicitor’s evidence that the Deceased had the requisite testamentary capacity.

Comment

This case highlights the fact that even though in these circumstances, an elderly, ill, dying, confused party when described by a challenging party at first sight could appear that there would be a strong chance of a successful claim for lack of testamentary capacity.

It may be worth noting that Mr McQuaid did not have a diagnosis of dementia or any other neurological deficit and that the outcome would have been different if this was the case.

However, it is a reminder that there could be other surrounding factors that can carry great weight to diminish the chances of success, particularly if a solicitor has been involved in taking the Will instructions and the execution of the Will and they are able to evidence they have considered capacity and contemporaneously recorded the encounter.