Edward Hicks acted for the successful defendant in Clitheroe v Bond [2020] EWHC 1185 (Ch). The case concerned the validity of two wills. The Deceased had tragically lost her eldest daughter to cancer in 2009. She made two wills, one in 2010 and one in 2013, cutting out her second daughter, the Defendant, from any significant benefit from her estate which was essentially left to her son, the Claimant. The Defendant successfully challenged the validity of both wills on the basis that the Deceased suffered from a complex grief reaction or other affective disorder as a result of her daughter’s illness and untimely death, which caused her to form insane delusions about the Defendant and otherwise poisoned her mind against the Defendant, so as to deprive her of testamentary capacity. The Deceased was held to have died intestate.

Points of note:

1. The case applied the principle recognised in Key v Key [2010] 1 WLR 2020 that  an affective disorder, such as a complex grief reaction, can impair capacity. The deceased’s cognition was not affected. Unlike Key v Key in which the deceased did not have the mental energy to make decisions, the deceased lacked capacity because of insane delusions and a poisoning of her mind resulting from her affective disorder.
2. The case considered the meaning of an insane delusion within the Banks v Goodfellow test. In particular it considered the approach in Williams Mortimer & Sunnucks which asks whether the court can understand how a man in possession his senses could have held the relevant belief; a test based on the judgment in Boughton v Knight (1873) LR 3 PD 64 at 68, and compared it to the approach in Williams on Wills which requires a belief in the existence of something no rational person could believe, but adds the rider “and, at the same time, it must be shown to be impossible to reason the patient out of the belief”, a test derived from Dew v Clark and Clark (1826) 3 Add 79. The court preferred the test in Williams Mortimer & Sunnucks and rejected the rider in Williams, concluding that the rider was not supported by authority, would lead to uncertainty, could lead to nonsensical courses of action, would risk reversing the burden of proof, and that it would be wrong for lack of challenge to defeat a clear delusion where the testator may have kept the belief to themselves. The proper approach should be to consider how or why the belief has arisen, rather than seeking to prove a negative.
3. The case also considered the proper approach to be taken in relation to retrospective capacity assessments. The task faced by the court, and to which experts should address their minds, is to determine whether on the balance of probabilities and on the available evidence the deceased had testamentary capacity. The matter could not be approached by applying the standard required for a clinical diagnosis during the deceased’s lifetime; the absence of a lifetime psychiatric assessment did not preclude a finding that the deceased was suffering from an affective disorder.

You can read the judgment here.