Can Grief Be Enough To Invalidate A Will?

• Published date: 09 September 2021
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Arbitration & Dispute Resolution, Wills/ Intestacy/ Estate Planning
• Law Firm: Withers LLP
• Author: Ms Deborah Nicholls-Carr and Paul Hewitt

This review of the recent decision in Clitheroe v Bond will be useful for estate and inheritance dispute lawyers, professionals working with individuals who lack capacity and those involved in probate disputes with issues over capacity.

The extent of the deceased's cognitive impairment is central to most testamentary capacity cases and often results from dementia. In Clitheroe v Bond medical experts agreed there was no evidence of cognitive impairment. Instead, a mother's grief over her daughter's death was so severe that it led to delusions (irrational and fixed false beliefs) which poisoned her mind, leading her to cut her surviving daughter out of her Will. That led in turn to a bitter probate dispute between siblings over their mother's estate.

The judgment also provides a 21st century update to the 19th century doctrine of insane delusions.

Background

Jean married Keith Clitheroe in 1961. They had three children - Susan, John and Debra (known as Debs). Jean divorced Keith in around 1980 after finding out that he had been sexually abusing Susan.

Debs sadly died from cancer in 2009 aged 46 years old. Jean was deeply affected by Debs' illness and death, leading to the deterioration of her relationship with Susan and ultimately to making a Will in 2013 which disinherited Susan and left all to John.

Jean provided handwritten instructions to her solicitor for the Will, which included apparently cogent and detailed reasons for excluding Susan. Perhaps the most significant of Jean's allegations was that Susan had falsely accused her father of sexual abuse and purposely broken up her parents' marriage. Other reasons included lack of contact, that Susan was a shopaholic, that if it had been left to Susan to care for Jean she would have 'starved to death', and an allegation that Susan and others ransacked Debs' bungalow after her death.

Jean died in December 2013 leaving an estate worth around '400,000.

The dispute

Susan challenged the Will, claiming that Jean lacked testamentary capacity. She argued that Jean suffered from a complex grief reaction after Debs died amounting to an 'affective disorder' (a term which is used in the Banks v Goodfellow test for testamentary capacity), which manifested in severe depression and insane delusions about Susan.

Jean was described as a strong character and stubborn. The experts agreed that there was nothing in the medical records suggesting that she had a cognitive impairment. Jean scored highly on Mini Mental State...