Reasons to choose Wilson Browne
A daughter has successfully challenged her mother’s Will after showing that her mother held delusions about her.
Jean Clitheroe died in September 2017 aged 76. Her Estate, worth about £325,000, was to be distributed in accordance with a Will dated 2013. This was supported by a letter of wishes which noted that she had deliberately omitted her daughter Susan Bond on the basis that she was ‘a shopaholic and would just fritter it away‘.
The 2013 Will (and an earlier 2010 Will) were drafted by solicitors. A solicitor’s attendance note recorded Mrs Clitheroe’s view that Susan was a ‘spendthrift and will just spend her inheritance‘. Mrs Clitheroe’s 2010 and 2013 Wills left her entire estate to her son instead.
Susan Bond opposed the application made by her brother for probate on grounds that her mother’s Will was invalid for lack of testamentary capacity. She argued that the 2010 and 2013 wills were not valid 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 her brother, alleging “fraudulent calumny” – a rarely used claim but one that relies on the testator’s mind being poisoned by the actions of another.
Seeking to argue against both the 2010 and 2013 Wills Susan Bond argued that her mother died intestate, meaning that the Estate would be split between Susan and her surviving sibling.
In evidence, it transpired that no attempt had been made to take instructions from Mrs Clitheroe in person. The brother, 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 Court accepted that the medical evidence John Clitheroe relied upon did not discharge the burden of proof and therefore it was to be presumed that Jean Clitheroe did not have testamentary capacity at the material times. The Court found, however, 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.
The Court ruled that Jean Clitheroe had suffered from ‘insane delusional beliefs’, and so both the 2010 and 2013 Wills were determined to be invalid. They could not be admitted to probate through lack of testamentary capacity and the intestacy provisions would apply with the Estate being divided equally between Susan Bond and John Clitheroe.
If you do think a Will is invalid get professional advice and opinion – it may be worth challenging.