Sister defeats brother's appeal in Banks v Goodfellow E&W estate dispute

Thursday, 25 August 2022
The England and Wales High Court (EWHC) has upheld a 2020 judgment disallowing two wills on grounds of testamentary incapacity, in an appeal judgment that once again asserts that the proper test for capacity is Banks v Goodfellow rather than that under the Mental Capacity Act 2005 (MCA 2005).
Last will and testament

Jean Clitheroe (the deceased) made the wills in 2010 and 2013, not long before her death. The wills disinherited her daughter Susan Bond and left the whole GBP400,000 estate to her son John Clitheroe. She had given her solicitor handwritten instructions explaining her reasons for excluding Bond.

Bond challenged the wills after her mother's death, arguing that the deceased had suffered from severe grief after the early death of another of her daughters in 2009, so that she experienced severe depression and ‘insane delusions’ about Bond.

Bond’s brother Clitheroe maintained that the allegations against her were largely true and their mother was not deluded. The deceased had never had a full psychiatric assessment, but every clinician who treated her found her to have had capacity. However, at the first EWHC trial in May 2020, Deputy Master Linwood accepted Bond’s arguments and ruled the wills invalid. This implied that the deceased had died intestate and her estate was to be split equally between Clitheroe and Bond.

Clitheroe appealed. The appeal has taken a long time to be decided, partly because of the COVID-19 pandemic and partly to give the parties an opportunity to pursue alternative dispute resolution. However, attempts at mediation failed and a further hearing was held before Falk J.

Clitheroe offered six grounds of appeal, the most fundamental being that Linwood had applied the wrong approach for determining capacity. Instead of applying the test in Banks v Goodfellow, he should have applied the test under the MCA 2005. Other grounds were that Linwood had misapplied the tests for 'delusions' and for testamentary capacity in light of the evidence; had unreasonably preferred the evidence of Bond’s expert to that of Clitheroe’s expert; applied too low a threshold for finding delusional beliefs; and wrongly failed to uphold the validity of the wills when that was the only lawful decision open to him on the evidence.

Falk J dismissed the appeal on the first ground; the Banks test was the correct one, she concluded. This meant that Clitheroe bore the burden of proof and had to show that no delusion regarding abuse influenced the wills.

However, Falk also accepted that the original judgment did not take full account of the need for a false belief to be fixed in order to amount to a delusion and so the full lists of insane delusions accepted by Linwood ‘should therefore not be regarded as entirely safe’. Falk decided her correct course was to allow the appeal on those two specific grounds, but nevertheless to remake the decision with the same overall result. Consequently, both wills are once again declared invalid and thus the deceased died intestate (Clitheroe v Bond, 2022 EWHC 2203 Ch).


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