Bereavement grief and testamentary capacity

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The issue of testamentary capacity is often at the root of disputes over Wills and subsequent claims made under the Inheritance (Provision for Family and Dependants) Act 1975 and can be difficult to prove. Whilst many of these instances will centre around conditions such as dementia, there are other circumstances where capacity may be challenged.

This proved to be the case in Clitheroe v Bond 2020, where it was claimed that Jean Clitheroe had a complex grief disorder which impaired her testamentary capacity.

Mrs Clitheroe died in September 2017 leaving an estate worth £325,000. With the assistance of her solicitors, she had made Wills in 2010 and 2013 along with letters of wishes in which she explicitly disinherited her daughter, Susan Bond, and left the entire estate to her son, John. Mrs Clitheroe’s justification for omitting her daughter from her Will was her belief that Susan would not use the money wisely.

Mrs Clitheroe appointed John as the executor and trustee of both her Wills but his probate application was challenged by Susan who argued that the Wills were invalidated because her mother was suffering from a continuing affective disorder when she made them which had been triggered by the death of another of her children. In the case that followed, it was argued by the claimant that the disorder manifested itself in depression and ‘insane delusions’ in which Susan was the target.

In addition to the testamentary capacity claim in relation to both Wills, Susan also made a claim on the ground of fraudulent calumny against the 2013 Will, arguing that John had poisoned their mother’s mind against her. Whilst the execution of both Wills was criticised, neither was challenged on that basis.

The burden of proof required John to provide evidence that his mother was not suffering the bereavement disorder or that any such disorder did not impact on her capacity when making her Wills. Having weighed the testimony of medical experts for each party, the High Court ruled that Mrs Clitheroe did suffer insane delusions and therefore she did not have testamentary capacity in respect to either Will. On that basis, Susan’s challenge was successful and the residuary estate will be divided equally between her and John.

However, the Court rejected Susan’s claim of fraudulent calumny as it found no direct evidence of John having had undue influence over his mother in relation to the terms of her Wills.

This case highlights the fact that the scope for claims concerning lack of testamentary capacity is wider than may at first be assumed.