Wills overturned because of grief - Clitheroe v Bond [2020] EWHC 1185 (Ch)

This is an unusual case, which has very recently gone to appeal (23 March 2021) and concerns a claim to prove (admit to court) two wills of Jean Clitheroe.  The claim was brought by her son, John Clitheroe. 

Background

Jean Clitheroe had been married to Keith Clitheroe and had three children; Debra born in 1963, Susan in 1967 (the Defendant) and John (the Claimant/appellant) born in 1968.  Jean and Keith divorced in 1982.  Debra sadly died of cancer in 2009 when she was just 46 years old.  Jean was deeply affected by Debra’s death and ‘took to her bed’ from late 2009 where she remained until her death on 11 September 2017 aged 76.

Prior to her death, Jean had prepared two wills; one dated 21 May 2010, and another 3 December 2013.  Under the May 2010 Will, John took the majority of the estate as he did under the later one, bar small gifts to grandchildren.  Susan was excluded and Jean gave the reason as being that she thought Susan was a ‘shopaholic’ and would just ‘fritter any inheritance away’.

John issued court proceedings to propound (prove) both wills, Susan defended disputing their validity and asked the court to rule that Jean died intestate. 

Susan argued that Jean suffered from a ‘grief disorder’ following Debra’s death as well as a continuing affective disorder and insane delusions which poisoned her mind against Susan.

She argued that the reasons Jean gave for excluding her were false and caused either by John (fraudulent calumny) or by a lack of testamentary capacity.

At the first hearing, the court considered;

1.    What Jean’s reasons were for excluding Susan from both her wills, and

2.    Whether these beliefs were correct, and

3.    Whether she excluded her because of a hatred of her and if so, was this hatred caused by John?

In respect of 2010 will, there was criticism that the solicitor had not met Jean face to face and had taken instructions over the telephone.  The firm had not followed the ‘golden rule’ i.e. where a client is elderly and ill, an opinion from a dr can be sought to assess capacity.

Both side’s instructed experts to examine Jean’s medical records and retrospectively assess Jean’s capacity.  Dr Series (for John) was of the opinion there was nothing to suggest that Jean’s understanding had been compromised and there was no cognitive impairment.  Professor Jacoby, for Susan, found that Jean did not suffer from dementia but could be susceptible to influence especially where it fitted with her own fixed ideas.

Professor Jacoby’s opinion was that Jean was suffering from a ‘disorder of the mind’ grief reaction and persistent depression caused by Debra’s death.  He considered she lacked capacity on the grounds of insane delusions.  He stated that if her beliefs about Susan were accepted by the court as being false then they were consistent with beliefs caused by an affective disorder.

Finding

In considering all the evidence, the Judge found John to be an unreliable witness, who ‘did not care much for the truth’ but in comparison he found Susan’s evidence ‘truthful’.

He found that Susan was not liable for the estrangement between her and her mother and some of Jean’s views about Susan i.e. that Susan would have let her ‘starve to death’, were irrational and delusional.

There was equally no truth in the allegation that Susan had stolen Swarovski crystals from Jean or ransacked the bungalow and these were again delusional. 

Impact of Debra’s death on Jean

The judge also considered Jean’s behaviour following Debra’s sudden death and her reluctance to even accept that Debra was going to die.  He found, she had acted irrationally in preventing Debra from being administered pain relieving drugs. Not only had she had a long lasting and irrational attachment to Debra’s items, she had also kept the bungalow as a shrine to Debra.  There were various references in her medical records to her feeling depressed and constantly talking about the death of her daughter.

Testamentary capacity

In considering whether Jean lacked capacity to make the two wills, the judge accepted Professor Jacoby’s view that Jean suffered from an affective grief disorder.  John was accordingly unable to discharge the burden of proof that Jean had capacity

It was also accepted that Jean was suffering from insane delusions

Fraudulent Calumny

In considering the claim against John of fraudulent calumny i.e. that he had poisoned Jean’s mind against Susan, the burden was on Susan to demonstrate this.  The judge found that there was insufficient evidence to demonstrate that John encouraged his mother’s mistaken beliefs against Susan and accordingly he did not find against John.

As a lack of capacity had been established, neither the 2010 nor 2013 wills were proved and accordingly John’s claim failed.  The estate will instead pass according to the intestacy rules.

John appealed the judge’s decision and the matter went to appeal on 23 March 2021.

Conclusion

Whilst it is not unusual for a will to be challenged on the grounds of lack of testamentary capacity or fraudulent calumny, this claim is interesting on two grounds; first, that both previous wills were found not to be valid on the grounds of lack of testamentary capacity and secondly, that it was held that a strong reaction to grief could amount to a lack of testamentary capacity. 

The test for capacity to make a will is set out in the case of Banks v Goodfellow [1870]; the person making the will needs to be able to comprehend;

1.    They are making a will,

2.    The extent of their estate,

3.    Those who might have a claim against their estate, and

4.    Not be affected by a delusion of the mind.

Where a testator lacks capacity then the will is not valid and the estate will pass according to an earlier will or the rules of intestacy.  It is usually quite difficult to prove a lack of capacity and often, as in this case, retrospective medical evidence is required.  It is unusual for two wills made several years apart to both be found to be invalid because capacity can fluctuate over a long period of time.  This is especially true where dementia causes the lack of capacity.  However, in this claim, it was accepted that a strong grief disorder had prompted Jean to suffer from various insane delusions which constituted delusions of the mind under the Banks v Goodfellow test and resulted in a lack of capacity not just for the later will in 2013, but for the 2010 will also.

Grief reaction has been considered previously in the claim of Key v Key [2010] where an elderly man made a will only a week or so after the death of his wife omitting his sons.  The solicitor in that matter had not obtained medical evidence to confirm that Mr Key had sufficient capacity.

The facts of this claim are unusual but it will be interesting to see whether this decision results in an increase in will challenges being brought on the grounds of a grief reaction.  Such a condition is likely not to be as apparent to will writers or family members and further demonstrates the need to obtain a full background on the will maker and to obtain medical evidence as to capacity where there are any doubts or concerns.

Clitheroe v. Bond has gone to appeal and we wait to see whether the decision is upheld.