Case Adjourned For Three Months From High Court

A son looking to have his mother’s two wills reinstated has now heard a High Court judge express concern over the original judge’s decision.

The judgment from the High Court handed down this week (4 May) was significant for its commentary on the test for testamentary capacity and whether Jean Clitheroe, who died in 2017, suffered from delusions.

Leading national law firm Irwin Mitchell, who is representing John in the appeal, argued that the Mental Capacity Act 2005 is the correct test for testamentary capacity rather than the common law Banks v Goodfellow test or, alternatively, that the Deputy Master had misapplied Banks v Goodfellow in relation to the delusions test and/or made findings as to delusions which were not open to him.

While Falk J declined to overturn the 150-year-old common law test, she did for the first time carry out a full review of the authorities on delusions and found that a delusion must be a belief which is both irrational and fixed.

She said the correct approach is to carry out “a holistic assessment of all the evidence”  and expressed concern that the Deputy Master may not have taken full account of the need for the beliefs to be fixed.

She agreed that the belief on the part of Jean about Sue being a ‘shopaholic’ or ‘spendthrift’ which was the primary reason Jean cited in her instructions for her 2010 Will, was on the face of it hard to classify as a delusion.

Falk J has adjourned the appeals for three months to see if an agreement between the two parties can be reached.

Expert Opinion

“While the judge declined to apply the Mental Capacity Act test to testamentary capacity, she did recognise there was a potential tension in having two tests.

“It’s also significant that the judge criticised Deputy Master Linwood’s decision below, on the application of limb four of the Banks v Goodfellow test by raising concern that he may not have taken full account of the need for Jean’s beliefs to be fixed.

“We will continue to work hard to closely support John over the adjournment and alternative dispute resolution during this emotionally difficult time for him and his family.” Nicola Bushby - Partner

Background

Jean Clitheroe died in 2017, leaving almost the entirety of her estate to her son, John. While two Wills had been made and validly executed, her daughter Susan Bond was cut out of both; Jean said because Sue was ‘a shopaholic and would just fritter it away’; the second will made wider allegations of theft from the property of Jean’s deceased daughter, Debs.

While John argued both wills were valid, Susan argued the allegations were untrue and were caused by Jean suffering from a complex grief reaction to Debra’s death which poisoned her mind against Susan.

The judge found that while John hadn’t interfered in Susan and Jean’s relationship, there was evidence showing Jean suffered from an ‘affective grief disorder’ and that Susan had no noteworthy shopping habits. The 2010 and 2013 wills were both struck out and Jean was ruled to have died intestate.