The 2021 case of Clitheroe v Bond looked at the intriguing relationship between delusions, cognitive impairments and a testator’s capacity to make a will. This article examines the background to the case and discusses the definition of a ‘delusion’ as referred to in the Banks v Goodfellow test.
This case concerned the estate of Jean Clitheroe who had three children: Debra, John and Susan. Jean died in 2017 leaving an estate worth around £400,000 and two wills dated 2010 and 2013, both of which left her residuary estate to her son, John.
In 2009, prior to both wills being made, Jean’s eldest daughter, Debra, had died. This event had an understandably profound effect on Jean but, less understandably, it also deeply affected her relationship with Susan, whom she blamed for Debra’s death. It's within this context that Jean made the 2010 and 2013 wills in which she expressly excluded Susan, stating that she was a 'shopaholic' who had stolen from her, and who had caused not only Debra’s death, but the breakdown of her parents’ relationship.
After Jean’s death, Susan challenged the wills on the basis that Jean lacked testamentary capacity at the time they were executed.
The key issue was whether Jean’s beliefs about Susan were in fact ‘delusions’ or, merely an odd and unreasonable belief, at a time when Jean had no known pre-existing disorder that might affect her mental state.
Professor Robin Jacoby, on behalf of Susan, considered that after Debra’s death Jean developed an 'affective disorder' which included a complex grief reaction and persisting depression, which impaired her capacity. He found that Jean’s beliefs concerning Susan were ‘delusions’.
The court agreed and, at first instance, found that Jean was indeed suffering from delusions about Susan, which caused her to exclude her as a residuary beneficiary from the 2010 and 2013 wills. The wills were therefore set aside on the basis that Jean didn't have testamentary capacity to make them, and Jean’s estate passed under the rules of intestacy, to be shared between her children equally.
John appealed and claimed that the judge had mis-applied the test for delusions.
It was common ground that a ‘delusion’ must be a belief which is irrational and out of keeping with a person’s cultural, educational or religious background but the court also considered certain authorities which suggested that the delusion must be ‘fixed’, i.e. one that it is ‘impossible to reason the patient out of’.
Doctor Hugh Series, for John, agreed in that he considered that 'Delusions do not respond to reason. It is not possible to talk someone out of a delusion'. However, under cross-examination, Doctor Series conceded that he could not say that Jean did not have an affective disorder and that, had a psychiatrist examined Jean in the period after Debra’s death, she would have been likely to have been diagnosed as having a depressive disorder. As a result, as John had not discharged the burden, which on the facts had passed to him, of proving that Jean had testamentary capacity at the time of making her 2010 and 2013 wills the appeal court also found in favour of Susan.
The court considered that, for a delusion to exist, the relevant false belief must not be a simple mistake which could be corrected: 'It must be irrational and fixed in nature…it should be out of keeping with the person's background'.
The court did not accept that this meant there must always be evidence of some attempt to persuade the testator that they are wrong as some beliefs will be so obviously extreme and irrational that no further evidence of their imperviousness to reason will be needed. For other beliefs, evidence that the testator could not be reasoned out of the belief may be needed to show they were delusional.
The court determined that what is required is: “an holistic assessment of all the evidence. This would take account of the nature of the belief, the circumstances in which it arose and whether there was an evidential basis for it, whether it was formed in the face of evidence to the contrary, the period of time for which it was held and whether it was the subject of any challenge.”
The court also established that, when assessing a deceased person's capacity to make a will, the legal test that should be used is still that outlined in the case of Banks v Goodfellow, rather than the test set out in the Mental Capacity Act 2005.
The decision of the Clitheroe v Bond case has been referenced in numerous recent cases when discussing what amounts to a ‘delusion’ and assessing testamentary capacity as per the test set out in the Banks v Goodfellow case.
For further information, or if you require assistance with a similar will dispute, please contact our disputed wills and trusts team.