Clitheroe v Bond: Birkett Long success in High Court will dispute

 In the recent contentious probate case of Clitheroe v Bond, the court overturned the validity of two wills. The Defendant, Sue, who was represented by Birkett Long, was successful in the will dispute on the ground that the Deceased lacked mental capacity to make them.

The Deceased, Jean, had three children, Sue, Debs and John. Sadly, her eldest daughter, Debs, died in 2009. Before then, Sue, Debs and Jean had an extremely close relationship but that unfortunately changed upon Debs’ death.

Jean made a will in 2010, and another one in 2013, which excluded Sue. The two wills left most of her estate to her son, John.

When Jean made her wills, she gave explicit reasons for excluding Sue. These included allegations that Sue was a shopaholic, and that she stole various items, some of which belonged to Debs.  

John started court proceedings to determine whether the wills were valid, and it was for him to establish that his mother did have capacity to make her wills. Sue defended the claim and alleged the wills were invalid because Jean lacked capacity because of a complex grief reaction to Debs’ death and the allegations about Sue were insane delusions.

Sue obtained a report from Professor Jacoby, who before he retired was the leading expert in this field, who said that if the allegations were false, Jean was suffering from a disorder of the mind and therefore lacked capacity to make her wills.

The High Court of Justice found that Jean had no rational basis for the allegations about Sue and that they were insane delusions. Furthermore, Jean was so deeply affected by the bereavement following the death of her daughter, she was suffering from a disorder of the mind. She therefore lacked the testamentary capacity to make both wills.

Mental capacity to make a will

The legal test for testamentary capacity comes from the case of Banks v Goodfellow (1870), which states a person making a will must:

• Understand the nature and effect of his act;
• Understand the extent of the property he is disposing;
• Be able to comprehend and appreciate the claim to which he ought to give effect; and
• Not be suffering from a disorder of the mind, or suffering from any insane delusions, that poisons his affections.

In relation to whether someone was suffering from an insane delusion, the court held that, in order to establish whether a person is suffering from ‘insane delusions’ one must ask “Can I understand how any man in possession of his senses could have believed such and such a thing?”. If the belief cannot be understood, then the person will not have the required mental capacity.

The court also provided guidance about how an expert retrospectively assessing capacity should approach the task. The experts should determine whether, on the balance of probabilities and based on the evidence before them, the deceased had testamentary capacity. The standard required for a clinical diagnosis during the deceased’s lifetime is irrelevant. Furthermore, the absence of a psychiatric assessment during the deceased’s lifetime did not prevent a finding that the deceased was suffering from an affective disorder.

As Jean lacked testamentary capacity, both wills were found to be invalid. This now means the estate will be dealt with according to the rules of intestacy, so the estate will be split 50/50 between sue and John.

Contesting a will

A claim against the validity of a will is one of the claims a disinherited family member can bring if they do not receive anything, or have not left as much as they expected. Claims against the validity of a will can be made on the basis that the will is invalid because:

• The deceased lacked capacity or was to lose capacity, like the case above
• The deceased did not know and approve the contents of the will
• The deceased was unduly influenced into making the will
• It was a forgery
• The will does not comply with the necessary formalities
• Someone poisoned the deceased’s mind against someone else so they weren’t included in the will- also known as fraudulent calumny

Alternatively, someone can make a claim against an estate under the Inheritance (Provision for Family and Dependants) Act 1975.

If you are concerned about the validity of a will or would like to challenge a will, please do not hesitate to contact me on 01206 217307 or [email protected].

Birkett Long has the largest contested probate team in Essex and has vast experience dealing with all types of contentious probate claims.