Clitheroe v Bond

A will is invalid where the testator’s testamentary capacity is impaired by an affective disorder or by insane delusions which influence the disposition. Testamentary capacity concerns the testator’s understanding at the time of execution, but cognitive understanding is not enough if mental disorder poisons the testator’s affections, perverts the sense of right or prevents the exercise of natural faculties.

A delusion is established by asking whether the belief was one which no rational person in possession of their senses could have held. It is unnecessary to prove that the testator was challenged about the belief or could not be reasoned out of it. Fraudulent calumny requires compelling evidence that dishonest aspersions induced or encouraged the disposition, and that the person making them knew they were false or did not care whether they were true.

John Clitheroe sought probate of his late mother Jean’s 2010 and 2013 wills. Both wills substantially excluded his sister Susan Bond and left the residue to John. Susan counterclaimed that Jean lacked testamentary capacity because of an affective disorder, complex grief and insane delusions, or alternatively that the wills resulted from fraudulent calumny.

The court considered whether Jean had capacity when each will was executed, whether beliefs about Susan influenced the dispositions, and whether John had induced or encouraged those beliefs dishonestly. The central issues were the effect of bereavement-related mental disorder and irrational beliefs on testamentary capacity, and whether fraudulent calumny had been proved.

1. The claim failed. Neither will could be admitted to probate. John had not proved, on the balance of probabilities, that Jean was free from an affective disorder or from delusions which affected her testamentary capacity.
2. Applying Banks v Goodfellow and Key v Key, the court held that an affective disorder, including complex grief and persisting depression, may impair testamentary capacity even where there is no cognitive impairment. Jean’s continuing grief over Debra’s death, self-neglect, depression, pain and persistent preoccupation with Debra supported that conclusion.
3. The court preferred the test in Williams on Wills, supported by Boughton v Knight, over a requirement that it be proved that the testator could not be reasoned out of the belief. The relevant question was whether a rational person in possession of their senses could have held the belief. The belief must also have influenced the particular disposition.
4. Jean held irrational and delusional beliefs that Susan had fabricated allegations of abuse, had stolen property, was a spendthrift or shopaholic, had deprived Jean of contact with Charlotte, and had ransacked Debra’s bungalow. Those beliefs materially influenced both wills. Testamentary freedom permits inadequate, capricious, mean or bad motives, but not where the harsh judgment arises from mental defect.
5. The allegation of fraudulent calumny was not established. Although John had motive, opportunity and involvement in the wills, the evidence that he knowingly or recklessly induced the relevant false beliefs was circumstantial and insufficiently compelling. The court therefore pronounced against the validity of both wills.