A ‘bitter’ probate dispute in which a mother’s grief allegedly rendered her wills invalid has been adjourned by the High Court.
Clitheroe v Bond concerns a dispute between a brother and sister over the validity of two wills made by their late mother. The court was asked to decide whether the mother died intestate – meaning daughter Susan Jane Bond and son John Keith Clitheroe would receive an equal share of the £400,000 estate – or whether her wills were valid, meaning almost all of the residuary estate would go to the son.
In the original trial, Deputy Master Linwood refused to admit the two wills to probate on grounds of incapacity. He found the mother was suffering from an affective disorder at the material times, which included a complex grief reaction, 'insane delusions' and persisting depression following the death of her eldest child from cancer.
Clitheroe appealed this decision, arguing that the deputy master applied the wrong approach for determining whether his mother had capacity to make either will. He also argued that the judge erred by misapplying the test for ‘delusions’, in particular by failing to consider whether it was impossible to reason his mother out of the relevant beliefs and failing to have proper regard to relevant evidence, in particular the medical meaning of ‘delusions’.
His appeal also relied on the grounds the deputy master misapplied the test for testamentary capacity in light of the evidence and/or made findings as to delusions which were not open to him.
In a judgment handed down this week, Mrs Justice Falk confirmed that the correct test for assessing whether a testator had capacity to make a will remains as set out in the 19th century case of Banks v Goodfellow. She rejected the submission that there is power in the Mental Capacity Act 2005 to make a declaration as to the validity of a will.
On the question of delusions, Mrs Justice Falk concluded: ‘In order to establish whether a delusion exists, the relevant false belief must be irrational and fixed in nature. It not an essential part of the test that it is demonstrated that it would have been impossible to reason the relevant individual out of the belief if the requisite fixed nature can be demonstrated in another way, for example by showing that the belief was formed and maintained in the face of clear evidence to the contrary of which the individual was aware and would not have forgotten.’
In relation to delusions, the judge adjourned the appeal for a period of three months to give the parties ‘an opportunity to reflect on their positions and determine whether agreement can be reached without the expense of any further hearing’.
Mrs Justice Falk added that her concerns about the cost of the litigation, as well as the broader impact of the dispute on the family, ‘have not abated’.
Lawyers have welcomed the clarity the judgment brings to the question of how a testator’s capacity should be assessed. It was previously suggested that the appeal could pave the way for a change to the law surrounding mental capacity issues in will disputes.