Mother's 'delusions' about daughter invalidated her will

Tuesday, 26 May 2020
An Essex woman has successfully challenged a will in which her mother disinherited her, believing she was a compulsive spendthrift, and left her entire estate to her son instead.


The testatrix was Jean Clitheroe, who died in September 2017 at the age of 76 leaving an estate worth GBP325,000. She had made wills in 2010 and 2013, drafted by a legal firm, to which she had attached detailed letters of wishes noting that she had deliberately omitted her daughter Susan Bond because she was 'a shopaholic and would just fritter it away'. A solicitor's attendance note recorded Mrs Clitheroe as saying that Susan was a 'spendthrift and will just spend her inheritance'. The letter also made wider allegations against Susan that were not central to the case.

Mrs Clitheroe's son John, whom the 2013 and 2010 wills appointed as executor and trustee, took the residuary estate after bequests of chattels and cash to grandchildren. But Susan Bond opposed his application for probate on testamentary capacity grounds, arguing that the 2010 and 2013 wills were invalid because her mother had suffered from a complex grief reaction soon after the death of one of her other children, followed by a continuing affective disorder characterised by depression and 'insane delusions' regarding Susan. Susan also claimed that her mother's delusions were largely due to a 'poisoning of her mind' by John, and thus she also challenged the 2013 will on the grounds of fraudulent calumny. She therefore asked the court to pronounce that Jean Clitheroe died intestate.

Much of the evidence in the case came from documents provided by Mrs Clitheroe's solicitors to Susan Bond's solicitors, in reply to the latter's Larke v Nugus request soon after the testatrix's death. But there was also substantial criticism of the execution of the 2010 and 2013 wills. No attempt was made to take instructions from Mrs Clitheroe in person. John Clitheroe had been involved in their execution, he knew of the contents, and the ‘Golden Rule’ was not followed, although the drafting lawyer did attend and witness the execution of the 2013 will. There was in any case no challenge to execution, the main issue being capacity.

The burden of proof regarding capacity lay with John Clitheroe, as he was propounding the wills. He thus had to establish that Jean was not suffering from an affective grief disorder, or if she did that it did not affect her dispositions of her property. Medical evidence called to assist in the decision was divided. The old age psychiatry expert called by John Clitheroe testified that 'there was no clear medical evidence that Jean lacked testamentary capacity' at the time of making the wills and that it was 'unlikely' that she was suffering from an affective disorder. But the expert instructed by Susan Bond was more definite, stating: 'In my opinion, at the time she made both the 2010 and 2013 wills the deceased was suffering from a disorder of mind within the meaning of the Banks v Goodfellow judgment, namely an affective disorder.'

Ultimately, the England and Wales High Court accepted that the medical opinion did not discharge the burden of proof on John, and thus it was to be presumed that Jean Clitheroe did not have testamentary capacity at the material times. However, in the matter of fraudulent calumny, the burden of proof lay with Susan, and the court considered there was no direct evidence of John encouraging his mother's beliefs about Susan without regard as to whether they were true. It therefore did not find fraudulent calumny.

Accepting that Jean Clitheroe had suffered from 'insane delusional beliefs', the judge ruled that neither the 2010 nor the 2013 wills could be admitted to probate through lack of testamentary capacity (Clitheroe v Bond, 2020 EWHC 1185 Ch). The residuary estate will accordingly be divided equally between son and daughter.


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