In England and Wales, the principle of testamentary freedom means an individual can leave his/her assets in a Will to whomever he/she wishes and disinherit those who might expect to inherit. However, this is subject to potential challenge, including a claim that the individual did not have testamentary capacity to execute a Will(s). The following is an example of such a case.
Jean Mary Clitheroe (“the Deceased”) had three children, Debra, Susan (“the Defendant”) and John (“the Claimant”). Unfortunately, Debra died of cancer on 19 December 2009 when she was only 46 years old. The Deceased was deeply affected by Debra’s death and consequently, along with additional longstanding ailments, remained bedridden until her own death in September 2017, aged 76.
The Deceased left two Wills, both prepared with the assistance of solicitors: 21 May 2010 (“the 2010 Will”) and 03 December 2013 (“the 2013 Will”). However, it is clear instructions for both Wills were not taken in accordance with best practice, of particular note is that the “Golden Rule” was ignored. The 2010 Will bequeathed the residuary estate to the Claimant after small gifts of chattels to the Defendant and the Defendant’s daughter. The 2013 Will bequeathed the residuary estate to the Claimant after gifts of £5,000 to each of the Claimant’s two daughters and the Defendant’s daughter. The Deceased’s estate was worth in the region of £350,000.
At the time of preparing her Wills the Deceased provided her solicitors with reasons for excluding the Defendant, namely that the latter was “a shopaholic and would just fritter it away”, “[a] spendthrift and will just spend her inheritance”, that there was a lack of contact between her and the Defendant, and that the Defendant had ransacked Debra’s property after her death and refused to give her share of Debra’s estate to her own daughter.
- The claim
The Claimant issued proceedings to propound the 2010 Will and the 2013 Will. The Defendant disputed the validity of the Wills and argued that the Deceased suffered from a complex grief reaction due to Debra’s death, which manifested itself through depression and insane delusions regarding the Defendant, together with a poisoning of the mind against the Defendant. The Defendant also argued that the reasons the Deceased gave for excluding her from the Wills were as a result of false beliefs induced by the Claimant, who knew them to be false or else did not care if they were true or false, known as ‘fraudulent calumny’.
The court examined the Deceased’s extensive medical records and the Deceased’s reasons for making the Wills, and the nature and cause of the beliefs underpinning those reasons. The case is a good example of the approach of the courts and experts when conducting a retrospective capacity assessment. It has to be decided on the available evidence and on the balance of probabilities based on the records before it whether the deceased had testamentary capacity, or not.
- The court’s decision
The court held that both Wills were invalid due to a lack of testamentary capacity and therefore the Deceased was held to have died intestate. The court held that the Deceased was suffering from a complex grief reaction or other affective disorder, as a result of which her mind had become poisoned against the Defendant, and by reason of which she had formed a number of insane delusions about the Defendant, which caused her to make both Wills in the terms that she did.
The court applied the principle recognised in Key v Key  1 WLR 2020 that an affective disorder, such as a complex grief reaction, can impair capacity. The Deceased’s cognition was not affected. The lack of a psychiatric assessment of the Deceased whilst alive did not preclude the finding that she suffered from an affective disorder.
There was insufficient evidence of the Claimant encouraging the Deceased to exclude the Defendant, therefore the claim for fraudulent calumny was not successful.
- Practical Points
The case of Clitheroe v Bond has reinforced the importance for testators and testatrices to obtain thorough professional advice, both legal and medical, when there are doubts as to their testamentary capacity. In practical terms, the importance of the “Golden Rule” cannot be understated, solicitors need to make proper inquiries into the testator’s/testatrix’s reasons for the provision in their Wills and keep thorough attendance notes. Notwithstanding the fact the Defendant was successful, establishing insane delusions remains a high bar. Cases that call into question a testator’s/testatrix’s testamentary capacity are often intensely fact-sensitive and therefore all potentially relevant factors should be considered, not just the obvious such as medical records.
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