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Tests for testamentary capacity and delusional beliefs examined in Clitheroe v Bond

Posted on 17 May 2021

The High Court held in Clitheroe v Bond [2021] EWHC 1102 (Ch) that testamentary capacity should be assessed using the test set out in Banks v Goodfellow ("B v G"), not the Mental Capacity Act 2005 ("the MCA"). It also provided guidance on when beliefs are delusional.  

Background

The case involved a bitter dispute between two siblings over their mother Jean's circa £400,000 estate. Jean had three children: John, Susan, and Debra (who predeceased Jean). Jean made two professionally drafted Wills, under which her estate was left almost entirely to John.  Jean disinherited Susan because they had a significant falling out over Debra's care and because she thought Susan was a "shopaholic & would just fritter [her inheritance] away".

Susan successfully challenged the validity of Jean's Wills after a 5 day trial in 2020, on the grounds that Jean lacked testamentary capacity as a result of a complex grief reaction to Debra's death. As a result, Jean's estate would pass under the rules of intestacy and John and Susan would each receive half of the estate.

John appealed the first instance decision by Deputy Master Linwood on several grounds. We focus on the main grounds of appeal below.

Testamentary capacity

John argued on appeal that the Deputy Master used the wrong test to assess Jean's testamentary capacity. John asserted that testamentary capacity should be determined by reference to the MCA, rather than the test in B v G.

Under the test for capacity to execute a Will set out in the case of B v G, a testator must:

  1. understand the nature of making a Will and its effects;
  2. understand the extent of the property of which he is disposing;
  3. be able to comprehend and appreciate the claims to which they ought to give effect; and
  4. have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.

Under this test, the burden was ultimately on John to establish that Jean had the requisite capacity to make the Wills.

Mrs Justice Falk found that it would not be in the interests of justice to permit this ground of appeal on the basis that: (1) it was expressly conceded by both parties at trial that the correct test of testamentary capacity was that set out in B v G; (2) the trial had proceeded (i.e. evidence was given and submissions were made) on the basis that the B v G test applied; and (3) it would be cost disproportionate given the size of the estate to allow this point to be raised on appeal. She did however explain in obiter that if the point was allowed on appeal, it would have failed in any event. Mrs Justice Falk considered that Parliament had not intended to replace the long-establish common law test for testamentary capacity when it enacted the MCA and she saw no good reason to depart from it.

Delusions

Ground 2 of John's appeal was that, even if the B v G test was good law, the test for delusions was 'misapplied' by the Deputy Master. This was considered together with Ground 3, which was that the Deputy Master either misapplied the testamentary capacity test and/or made findings on delusions that were not open to him to make.

Unlike the test for testamentary capacity, there are varying definitions for delusions in case law and practitioner texts. The Court held that a simple mistaken belief that can be corrected would not amount to a delusion. The false belief needs to be irrational and fixed in nature. Mrs Justice Falk was concerned that the Deputy Master did not fully consider the 'fixed' aspect of Jean's beliefs.

The correct approach to assessing whether someone was suffering from a 'fixed' delusion required a holistic assessment of all the evidence. The Court will, "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 light of the findings above, in combination with the disproportionate costs as compared to the size of the estate in dispute, it was held that the parties should attempt to reach an agreement on these grounds, via mediation or otherwise, to avoid a further hearing.

Conclusion

The case raises interesting questions about whether there should be a single test for capacity and whether it is for Parliament or the Courts to change the two-test system that currently exists. For now, the test for assessing whether someone has testamentary capacity is as set out in B v G and a holistic approach to the evidence should be used to determine whether someone is suffering from a delusion.

The judgment can be found here.

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