The recent case of Clitheroe v Bond  EWHC 1102 (Ch) looked at the intriguing relationship between delusions, cognitive impairments and a testator’s capacity to make a Will. This short article by Barny Croft (Ashfords’ Disputed Wills and Trusts team) examines the background to the case and discusses the implications that the definition of ‘delusion’ found in Clitheroe might have on later cases.
The 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 is 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 parent’s relationship.
After Jean’s death, Susan challenged the Wills on the basis that Jean lacked testamentary capacity at the time they were executed.
The burden was on John to prove that Jean did not suffer from an affective disorder when she made the 2010 and 2013 Wills. The key issue was how to determine whether Jean’s beliefs about Susan were in fact ‘delusions’ or, perhaps just 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, acting 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 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 agreed that a ‘delusion’ must be a belief which is irrational and out of keeping with a person’s cultural, educational or religious background. However, there were several prominent authorities which indicated the delusion must be ‘fixed’, i.e. one that it is ‘impossible to reason the patient out of’. Doctor Hugh Series, acting 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.” He further argued that for something to be a delusion it had to be shown not only that it was false, but also that the holder could not be argued out of the belief, even in the face of evidence to the contrary, which it could not be said, was the case here.
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, it would have been likely that she had a depressive disorder. This was for the Court to find in favour of Susan once again, as John had not discharged the burden of proving that Jean had testamentary capacity.
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 rejected the argument that this meant that there must always be evidence of some attempt to persuade the testator they are wrong. 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. It 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.”
In the last couple of years I have had several similar cases. In one of those cases the elderly gentleman testator had developed a seemingly irrational infatuation with a masseuse of Asian origin very shortly after the death of his wife of nearly 40 years. In the year or so before he died the testator gave to said masseuse, all of his significant cash assets in the form of cash gifts, paying off her gambling loans, and gifts of Rolex watches and jewellery. When he ran out of cash, and the attention he received in response from the masseuse waned, he tried to sell his house to give her more. He died leaving a Will in which she was also a beneficiary. In both that case and in the Clitheroe case above, the testator had not suffered from a known cognitive impairment, and there were no plainly obvious ‘delusions’. Importantly, they both also had a clearly discernible event which “triggered” the delusions, namely the tragic loss of a loved one. The role of that trigger event played an important part in Clitheroe case. But what if, on similar facts, there is no discernible trigger to a change of behaviour or an unjustified and irrational belief? I do hope that we find out soon and it will be interesting to see whether this decision results in an increase in challenges to wills being brought on the grounds of a grief reaction.