John Keith Clitheroe v Susan Jane Bond

For testamentary incapacity under Banks v Goodfellow, an insane delusion requires an irrational and fixed false belief. It is unnecessary to prove that the deceased could not have been reasoned out of it. The court must assess the belief in its factual and medical context, including whether it was inconsistent with the deceased’s background and formed despite known evidence.

Where the challenger bears the burden of proof, a delusion need not be shown to have been the sole or principal cause of the testamentary dispositions. A delusion affecting the will is sufficient. An appellate court may remake the decision rather than remit the matter, particularly where the evidence was fully heard and further proceedings would be disproportionate.

Jean Clitheroe died intestate after the Deputy Master refused to admit her 2010 and 2013 wills to probate, finding that she lacked testamentary capacity. The estate would otherwise have passed substantially to her son, John, rather than being shared equally with her daughter, Susan.

On an earlier hearing of John’s appeal, the court dismissed grounds concerning the applicable capacity test, expert evidence and the evidential threshold. It adjourned grounds 2 and 3, concerning the legal test for delusions and its application to the findings of fact. The central issues were whether a fixed belief was required, whether the Deputy Master’s findings established such a belief, and whether the appellate court should remit or remake the decision.

1. Disposition. The appeal was dismissed on grounds 1, 4 and 5, allowed on grounds 2 and 3, and the decision was remade with the same result: neither will was admitted to probate and Jean died intestate. Ground 6 was dismissed.
2. Appellate powers and remittal. Under CPR 52.20(1), the appellate court had all the powers of the lower court. Although an error of law which might have affected the result ordinarily justified allowing the appeal, the court was entitled to remake the decision. A remittal to permit a party a further opportunity to adduce evidence or persuade a different judge was inappropriate where the case had been fully tried, credibility findings had been made, and the resulting costs would be disproportionate. The principle in FAGE UK v Chobani was applied.
3. Delusion. The relevant false belief had to be irrational and fixed. It was not necessary to establish that it would have been impossible to reason the deceased out of the belief. The examples previously given of how fixity might be proved were evidential examples, not additional requirements.
4. Application. The Deputy Master’s findings established that Jean’s belief that Susan had lied about sexual abuse was irrational and fixed. Jean had discovered letters evidencing the abuse, shown them to her doctor and solicitors, and relied on them when divorcing her husband. There was no rational basis to conclude that she had forgotten the letters or was merely mistaken. The belief was formed in the context of an affective disorder associated with the terminal illness and death of Jean’s daughter Debs.
5. Causation and burden. John bore the burden of proving testamentary incapacity. Once the relevant insane delusion was established, the will was subject to the presumption and distrust described in Banks v Goodfellow. John had not shown that the abuse-related delusion did not influence either will. It was immaterial that the abuse was not expressly included in the solicitors’ instructions, or that the delusion was not shown to be the sole or main reason for the dispositions.
6. Poisoning of the mind. The findings also supported an alternative conclusion that Jean’s mind had been poisoned against Susan by an affective disorder. The court did not decide whether poisoning of the mind was a separate test or necessarily required fixity and irrationality, because the abuse-related delusion independently disposed of the appeal.

• Chancery Appeals (ChD): The court allowed grounds 2 and 3 but remade the decision, with the result that neither will was admitted to probate. Grounds 1, 4, 5 and 6 were dismissed. The earlier judgment is reported at [2021] EWHC 1102 (Ch).
• High Court: Deputy Master Linwood refused probate of the 2010 and 2013 wills on grounds of testamentary incapacity: [2020] EWHC 1185 (Ch).