Testamentary Capacity with Fluctuating Vascular Dementia: When Detailed Solicitor Attendances Can Sustain Probate Despite Retrospective Medical Doubts

1) Introduction

In Re: The Estate of Teresa McGoldrick [Deceased] ([2025] IEHC 750), the High Court (Stack J.) was asked to admit to probate the Deceased’s last will dated 29 April 2015 (“the 2015 Will”). The applicant, Mary Durcan-Mullane (a niece), sought probate of that will, under which she received the Deceased’s house (the principal asset) and the Deceased’s sister, Madge (the applicant’s mother), took the residue.

The case arose in circumstances where the Deceased’s death certificate recorded vascular dementia. The Probate Office therefore required medical confirmation of capacity at execution; however, the Deceased’s GP declined to swear an affidavit because cognitive decline was noted from Easter 2014 onward. The Court also directed notice to beneficiaries under the two immediately prior wills (14 May 2014 and 1 September 2014), and some relatives raised concerns but did not formally contest.

The central issue was whether the Deceased had testamentary capacity on 29 April 2015, in a context of (i) extensive will-making history (11 prior wills between 2006 and 2014), (ii) documented cognitive impairment and psychiatric involvement in March 2015, and (iii) family reports of paranoia/delusional beliefs potentially affecting relationships.

2) Summary of the Judgment

The Court held that the presumption of capacity was rebutted on the facts (given cognitive decline, recent hospitalisation with confusion, and psychiatric referral), so the onus shifted to the applicant propounding the will to establish capacity at the material time.

Applying the Banks v. Goodfellow test, Stack J. found:

  • Limb 1 (understanding the nature of making a will): satisfied by the solicitor’s attendances.
  • Limb 2 (understanding the extent of property): satisfied; while the Deceased initially resisted a residuary clause and may have underestimated residue, she understood her house was the principal asset and later provided for residue.
  • Limb 3 (appreciating claims of potential beneficiaries and choosing between them): satisfied; the solicitor’s contemporaneous attendances showed coherent, rational instructions and decision-making, and the Court was not persuaded that delusional/paranoid beliefs drove the dispositive choices in the 2015 Will.

Accordingly, the Court ordered that the 2015 Will be admitted to probate.

3) Analysis

A. Precedents Cited

(i) Banks v. Goodfellow (1870) 5 L.R. Q.B. 549, 565

This decision supplied the controlling legal test: the testator must (1) understand the act and its effects, (2) understand the extent of the property, and (3) comprehend and appreciate the claims to which they ought to give effect. Stack J. also relied on the case’s treatment of delusions: delusions do not automatically negate testamentary capacity unless they bear upon, or “poison,” the testamentary dispositions. The judgment’s reasoning mirrors Banks by asking not merely whether the Deceased had paranoia/delusions, but whether those beliefs influenced the dispositive choices.

(ii) Flannery v. Flannery [2009] IEHC 317

Cited for the modern Irish articulation of Banks into a three-part formulation: understanding the will, knowing the nature/extent of the estate, and calling to mind those who might be expected to benefit and deciding whether to benefit them. Stack J. used this structure to organise the evaluation and to identify that the third limb—rather than formal understanding or asset awareness—was the true point of difficulty.

(iii) Buckley v. Cooper [2019] IEHC 424

Used in two ways:

  • Asset knowledge is not perfectionist: minor inaccuracies (e.g., farm acreage) do not negate capacity if the testator can engage meaningfully with the nature of the assets and instructions.
  • Probative value of solicitor attendances: the case exemplified how detailed, structured attendances (including prompts aligned with Banks) can materially support a finding of capacity.

Stack J. treated Buckley as confirming that capacity is functional and decision-specific, and that the court may accept capacity notwithstanding some uncertainty about asset detail, particularly regarding residue.

(iv) Scally v. Rhatigan [2010] IEHC 475, [2011] 1 I.R. 639

Cited for two propositions:

  • Deliberate omission of assets from disclosure to a solicitor may reflect intent or impropriety, not incapacity; capacity focuses on cognitive ability to decide and dispose, not moral quality of decisions.
  • Approach to capacity assessment: Laffoy J.’s approach (including reference to In re Key decd.) supports an “overall” evaluation on the balance of probabilities as to capacity at execution, rather than mechanistic inference from any single factor.

Stack J. analogised this to the present case by resisting a simplistic inference from medical diagnosis alone, and by focusing on what the evidence showed about decision-making at the material time.

(v) Re Glynn (deceased) [1990] 2 I.R. 326

This was central to the burden of proof and the evidential role of solicitors:

  • Presumption and shifting onus: ordinarily a presumption of capacity applies, but where a medical event (there, stroke) may affect capacity, the onus shifts to the propounder of the will.
  • Solicitor opinion “immaterial”: the solicitor’s subjective view is not determinative; what matters is whether the underlying evidence shows the test was met.

Stack J. used Re Glynn to (i) justify treating the presumption as rebutted and the onus as shifted given the Deceased’s documented cognitive and psychiatric issues close to execution, and (ii) insist that the solicitor’s affidavit must be supported by attendances demonstrating the Banks elements in substance.

(vi) In re Key decd.

Although only referenced through Scally v. Rhatigan, it appears in the judgment as persuasive authority associated with assessing wills made in circumstances suggestive of vulnerability. Stack J. did not treat it as laying down a separate rule, but as consistent with the requirement that the court make a probabilistic, evaluative finding on capacity at the time of execution.

B. Legal Reasoning

(i) Why the presumption of capacity was treated as rebutted

The Court accepted (and indicated it would have found even absent concession) that the Deceased’s condition and circumstances displaced the normal presumption: cognitive decline from Easter 2014, March 2015 hospital admission with “significant confusion,” psychiatric involvement, and a progressive dementia process. This triggered the Re Glynn dynamic: once credible medical circumstances raise real doubt, the propounder must prove capacity.

(ii) The Court’s granular application of Banks v. Goodfellow

The Court separated the analysis into the three Banks limbs and dealt with them sequentially:

  • Limb 1 (nature of the act): The solicitor’s attendances of 22, 27, and 29 April 2015 showed the Deceased understood she was making a will.
  • Limb 2 (extent of property): The Court accepted that residue is inherently uncertain and that the Deceased’s focus on her house as the principal asset was rational and consistent with earlier wills contemplating sale of the house to fund legacies. Her initial view that there would be “no monies” left did not show incapacity; it was treated as a prediction about depletion by expenses and care costs.
  • Limb 3 (claims of potential beneficiaries): This was the crux. The Court considered whether paranoia/delusions might have distorted the Deceased’s appreciation of family claims. Ultimately, Stack J. found the dispositive pattern (favouring those providing increasing day-to-day support) to be rational and consistent with her circumstances, and—critically—found no sufficient basis to conclude the 2015 Will was the product of delusionary influence.

(iii) The evidential pivot: contemporaneous solicitor attendances versus retrospective medical review

A striking feature of the judgment is its candid treatment of the limits of retrospective capacity assessment where no clinician performed a will-focused evaluation at the material time:

  • Medical notes were accepted as useful for timelines and for identifying relevant conditions (vascular dementia, fluctuating confusion, poor working memory), but insufficient—without a contemporaneous capacity assessment—to draw fine-grained inferences about the Banks criteria at execution.
  • Professor McCarthy’s opinion (“question her capacity”) was treated seriously, but it was not a definitive finding that the Deceased lacked capacity on 29 April 2015; rather, it expressed a clinical doubt based on the dementia process and scores indicating impairment.
  • The Court therefore looked for transaction-specific evidence of capacity on the actual date, and found it primarily in the solicitor’s attendances, which recorded advice, reflection time, and a change in instruction (the addition of a residuary beneficiary) consistent with comprehension and decision-making.

The judgment thus reinforces a practical evidential hierarchy: where contemporaneous, detailed solicitor records exist and display functional decision-making aligned with Banks, they may carry decisive weight even amid medical doubt—provided delusions are not shown to have driven the dispositions.

(iv) Delusions/paranoia and “causative influence” on dispositive choices

Stack J. accepted evidence that the Deceased had paranoid beliefs (accusations of theft, lock changes, Garda involvement). The legal question, however, was whether those beliefs undermined the third limb of Banks—i.e., whether they caused her to exclude or penalise someone who had a claim that a rational testator would ordinarily consider.

The Court’s conclusion rested on contextual reasoning:

  • Pattern over many wills: the Deceased frequently altered beneficiaries across a large extended family; exclusion of particular nieces/nephews (including Damian) occurred in multiple earlier wills, reducing the inference that later exclusion was delusion-driven.
  • Rational explanation for shift: increasing reliance on Madge and the applicant for daily meals, care support, and appointment attendance provided a non-delusional basis for concentrating benefit on them.
  • No demonstrated delusional “link” to 2015 dispositions: even if paranoia may have affected the Deceased’s view of some individuals at times, the Court was not satisfied that it infected the 2015 Will’s core decision.

C. Impact

(i) Probate practice in dementia-recorded deaths

The judgment underlines why probate applications become court-centered where dementia is recorded on a death certificate and the GP cannot certify capacity. It effectively validates a route to probate where:

  • medical evidence is incomplete or non-contemporaneous,
  • but solicitor attendances are contemporaneous, detailed, and demonstrate the Banks elements.

(ii) Practical incentives: “capacity-proofing” will-taking

Although not framed as a new rule, the decision practically elevates the importance of:

  • structured will-taking notes (ideally mapped to the Banks limbs),
  • recording advice given and the testator’s responses (not merely conclusions), and
  • recording reasons for key dispositive choices, especially where family conflict or vulnerability is foreseeable.

Future probate disputes involving dementia may turn less on diagnosis labels and more on whether the will file contains “decision-quality” evidence, as in this case.

(iii) Substantive law: reaffirmation of autonomy amid cognitive impairment

The judgment reinforces that a diagnosis of dementia—even progressive vascular dementia—does not automatically negate testamentary capacity. The question remains functional and time-specific: whether the testator met the Banks criteria at execution, including whether any delusion actually influenced the dispositions.

4) Complex Concepts Simplified

  • Testamentary capacity: the legal ability to make a valid will. It is not “general competence,” but capacity for the specific act of making a will at the relevant time.
  • Banks v. Goodfellow test: (1) understand you are making a will; (2) understand broadly what you own; (3) understand who might expect to benefit and make a rational choice among them.
  • Presumption of capacity / shifting onus: normally the law presumes a will-maker had capacity; but where significant doubt arises (e.g., stroke, significant confusion, dementia features), the person seeking probate may have to prove capacity.
  • Residue / residuary clause: “whatever is left” after paying debts, expenses, and specific gifts. Its value is often uncertain, so some imprecision about residue does not necessarily indicate incapacity.
  • Intestacy rules: if assets are not disposed of by will, the law distributes them by a fixed scheme to relatives. The solicitor’s advice here highlighted what would happen without a residuary clause.
  • MMSE / MOCA: screening tools for cognitive impairment. They can indicate impairment levels, but do not, by themselves, answer the legal question of whether a person satisfied the Banks criteria on a particular day.
  • Delusions and wills: a person can suffer delusions yet still have testamentary capacity unless the delusion affects the decisions about who gets what under the will.

5) Conclusion

[2025] IEHC 750 is a careful application of orthodox principles to difficult facts. While the Court accepted that the Deceased’s vascular dementia and psychiatric history rebutted the presumption of capacity and shifted the burden to the propounder, it ultimately admitted the will because the solicitor’s contemporaneous attendances supplied sufficient factual material to satisfy the Banks v. Goodfellow criteria, and because alleged paranoia/delusions were not shown to have causally distorted the dispositive choices in the 2015 Will.

The decision’s broader significance lies in its pragmatic guidance for probate disputes involving cognitive decline: absent a contemporaneous medical capacity assessment, courts may still uphold a will where there is detailed, transaction-specific evidence of rational will-making—while maintaining the essential safeguard that delusions only matter if they actually influence the testamentary dispositions.