Will upheld in Northern Ireland high court, despite hospitalised testator's 'confusion'

Monday, 28 November 2022
A will executed by a 73-year-old while he was receiving hospital treatment for terminal cancer has been upheld by the High Court of Justice in Northern Ireland, despite medical notes that showed him to be having ‘intermittent’ bouts of confusion.
will signing

Terence McQuaid's will, which left his entire estate to his wife, was drafted by his solicitor and long-term friend Patrick Mallon at Craigavon Area Hospital on 17 July 2018. The testator executed the will later the same day. Shortly afterwards, he was discharged to palliative care and died on 30 July 2018.

His eldest son, Conrad McQuaid, later challenged the will, noting that Mallon had not asked the hospital's clinical staff for an opinion on the deceased’s testamentary capacity. Moreover, the deceased had been described as 'suffering from intermittent confusion' when he was admitted to the hospital the previous week and his medical records while in hospital included several further entries referring to 'confusion'. He had been diagnosed with urosepsis and was being treated with intravenous antibiotics.

The court heard expert reports from two consultant psychiatrists who had carried out a review of the deceased’s medical notes and records, alongside other documentation. They noted that no formal cognitive assessment of the deceased had taken place while in hospital, but they also agreed that the deceased met the so-called 'golden rule' and there was no basis for a lack of testamentary capacity despite his intermittent episodes of confusion as a result of his severe infection. There was no suggestion in the medical records that he had any signs of dementia.

Mallon, who was also appointed executor of the will and was one of the defendants in the case, told the court he had dictated an attendance note on the evening the will was executed. As an experienced solicitor, he said, he had no reason to doubt the deceased's testamentary capacity and did not consider that he ought to contact medical staff for an opinion.

The judge accepted that Mallon had taken all reasonable steps to satisfy himself that the deceased had testamentary capacity. ‘Whilst the deceased was clearly unwell and hospitalised, there were no other “red flags”…There was no requirement therefore for Mr Mallon to seek any medical opinion and no breach of the so-called “golden rule”’, he said. He duly rejected McQuaid's claims that the deceased had lost capacity or had been coerced and admitted the will to probate (McQuaid v McQuaid, 2022 NICh 18).


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