Grief, traumatic events and affective disorders – they can invalidate a will! 

The recent decision in Clitheroe v Bond [2020] EWHC 1185 (Ch) is an interesting development.

In brief, Jean (the “Deceased”) had made two wills during her life, the first in 2010 and the second in 2013 (the “Wills”), passing away in late 2017. Both Wills excluded her daughter, Sue, from any significant benefit, leaving the majority of the estate to her son, John. The Deceased, in 2009, had lost her other daughter, Debs, to cancer. The Deceased suffered enormously following the death of Debs, to the point where the Judge ruled that she suffered from a ‘complex grief reaction and persisting depression that impaired her testamentary capacity’. Sue claimed that John had committed fraudulent calumny, but this was dismissed by the Judge who suggested there was insufficient evidence of the same.

The Judge instead found that the complex grief reaction caused insane delusions, which caused the Deceased’s mind to be ‘poisoned’ against Sue. The Judge agreed that insane delusions were those ‘beliefs that were “unfounded and irrational” i.e. beliefs no one in possession of their sense could have believed, and thus ruled that the Wills were invalid on the basis of lack of testamentary capacity.

Points to note:

• The Judge made clear that ‘testamentary freedom is exactly that and a testator may disinherit for inadequate, capricious, mean or bad motives as long as that harsh judgment is not one that arose “… from some mental defect”.’ This suggests that deluded or false beliefs e.g. that someone would be irrational in spending the inheritance when they would not, are not sufficient to claim insane delusions have poisoned the mind. Instead, the root of these must be from some mental defect. It is worth noting that expert evidence was required and relied upon to determine the mental defect in this case.

• The Judge states that ‘the emphasis should be on how or why the belief has arisen, as opposed to endeavouring to prove a negative.’ This suggests that rather than having to prove that the deceased’s beliefs are false, one must focus on whether that belief was caused by the delusions poisoning the mind.

• The Judge accepted a distinction between this case and Key v Key [2010] EWHC 408 (Ch) as in this case it was the ‘insane delusion’ which caused the lack of capacity, it was not that the grief caused the Deceased to lack ‘mental energy to make any decisions’ about whom to benefit.

• The point on fraudulent calumny is also interesting. In this case, the Deceased was clearly susceptible to believing those who ‘bad-mouthed’ Sue. However, the Judge said that the evidence was merely circumstantial i.e. John was actively involved in the will preparation, but this was not sufficient to prove that it was his actions which poisoned the Deceased’s mind.

For the above reasons, this case is an interesting development in testamentary capacity cases, particularly where the deceased seems to have acted ‘irrationally’ or not as one would expect. Despite this, the Judge did reiterate testamentary freedom and that people often have false beliefs about others, which may affect how they leave their estate. It is likely that a deceased’s false beliefs about a disinherited beneficiary will not be sufficient to warrant reliance upon this case, as here there was a significant focus on the Deceased’s mental defect as a cause of the delusions.

It will also be interesting to see whether this develops beyond cases of grief to other situations causing affective disorders, for example following a difficult divorce or other traumatic life event. Watch this space …

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