Clitheroe v Bond [2021] EWHC 1102 (Ch)

A probate dispute between siblings over their mother's wills. The High Court upheld the Deputy Master's finding that the testatrix lacked capacity due to an affective disorder and insane delusions about her daughter, confirming that the Banks v Goodfellow test, not the Mental Capacity Act 2005, governs testamentary capacity.

Facts

The case concerned a bitter probate dispute between John Clitheroe (the appellant) and his sister Susan Bond (the respondent) over two wills executed by their late mother, Jean Clitheroe, in 2010 and 2013. Both wills left the residuary estate to John, largely excluding Sue. The estate was valued at approximately £350,000-£400,000.

Jean had three children: Debs (who died of cancer in December 2009), Sue, and John. Following Debs’ death, Jean ‘took to her bed’ and remained bed-ridden until her death in September 2017. A distressing incident shortly before Debs’ death, concerning the administration of morphine, marked a turning point in the relationship between Jean and Sue. Jean subsequently became estranged from Sue.

Jean’s handwritten instructions for the wills contained various allegations against Sue, including that she was a ‘shopaholic’ and ‘spendthrift’, that she had stolen items, had ‘ransacked’ Debs’ bungalow, and (critically) that Sue had falsely accused her father Keith of sexual abuse. The Deputy Master found on clear contemporary evidence (including letters Jean herself had discovered and used in divorce proceedings) that the abuse allegations were true, and Jean’s later denial of them was irrational to the point of being delusional.

Deputy Master Linwood refused probate of both wills on grounds of incapacity, accepting the evidence of Sue’s expert Professor Jacoby that Jean suffered from an affective disorder (complex grief reaction and persisting depression) which impaired her testamentary capacity.

Issues

The appeal raised six grounds, principally:

• Whether the Mental Capacity Act 2005 (‘MCA’) test now governs testamentary capacity, rather than the common law test in Banks v Goodfellow (1870) LR 5 QB 549;
• Whether the Deputy Master misapplied the test for ‘delusions’, particularly whether it must be shown that the testatrix could not be reasoned out of the belief;
• Whether the Deputy Master gave adequate reasons for preferring Professor Jacoby’s evidence over Dr Series’;
• Whether too low a threshold was applied in determining lack of capacity.

Arguments

Appellant (John)

Mr Sachdeva QC submitted that the MCA test should now govern testamentary capacity, relying heavily on the Act’s long title and purposive construction. He argued the Deputy Master misunderstood Dew v Clark and wrongly rejected the test in Williams on Wills requiring it to be ‘impossible to reason the patient out of the belief’. He argued Dr Series’ evidence was misunderstood and cherry-picked, and that the concept of ‘projected guilt’ relied on by Professor Jacoby was controversial.

Respondent (Sue)

Mr Dumont QC submitted that John should not be permitted to raise the MCA point on appeal as it had been positively conceded at trial and would have affected how the evidence was presented. He argued the Banks test remained good law, that the Deputy Master properly found Jean’s beliefs were delusional, and that there was ample basis for preferring Professor Jacoby’s evidence.

Judgment

Ground 1: The Banks v Goodfellow test

Falk J refused to permit the appellant to raise the MCA argument on appeal, finding it would not be in accordance with the overriding objective. The trial had proceeded on the agreed basis that Banks applied, and aspects of the evidence and cross-examination would have been conducted differently.

Nevertheless, Falk J addressed the point and held that the Banks test continues to apply. The MCA’s provisions apply ‘for the purposes of this Act’, and its purposes do not extend to determining whether an individual had capacity to enter into a particular transaction (subject to specific exceptions). Following Walker v Badmin [2014] EWHC 71 (Ch) and James v James [2018] EWHC 43 (Ch), the judge concluded that Parliament did not intend to sweep away the well-established Banks test, which ‘has withstood the test of time’. The principle that clear words are required to abrogate long-standing rules of law (National Assistance Board v Wilkinson; Black-Clawson) supported this conclusion.

Grounds 2 and 3: The test for delusions

Falk J held that for a delusion to exist, the false belief must be irrational and fixed in nature. However, it is not an essential ingredient that it be shown to be impossible to reason the individual out of the belief. That is merely one way of demonstrating the requisite fixed nature. Other ways include showing the belief was formed and maintained in the face of clear evidence to the contrary of which the individual was aware, or that there was no rational basis on which the individual could have formed and maintained the belief.

The judge expressed concerns about certain specific findings of delusion (regarding the Swarovski crystals and some alleged thefts) where the ‘fixed’ nature of the beliefs was not clearly established. She adjourned determination of these grounds for three months to allow the parties to reflect and potentially reach agreement.

Grounds 4 and 5: Expert evidence

Falk J upheld the Deputy Master’s preference for Professor Jacoby’s evidence. Dr Series had never given a positive opinion that Jean did not suffer from an affective disorder, merely that the evidence was insufficient to diagnose one. Professor Jacoby, by contrast, formed a positive opinion on the balance of probabilities, drawing on the witness evidence as well as medical records. The burden of proof being on John as propounder, the Deputy Master was entitled to conclude he had not discharged it.

Ground 6

This raised no issues independent of the other grounds.

Implications

This decision confirms, at High Court level, that the common law test in Banks v Goodfellow remains the applicable test for testamentary capacity, notwithstanding the enactment of the MCA 2005. The judge recognised potential tensions between the two tests (including the presumption of capacity and s 1(3) MCA) but held that resolving any problems with the existing law is a matter for the Law Commission and Parliament.

The decision provides useful clarification of the test for ‘insane delusions’ under the fourth limb of Banks. While the clinical definition of a delusion requires a ‘fixed’ false belief, the legal test does not require evidence that actual attempts were made to reason the testator out of the belief. The fixed nature may be established in various ways: by the extreme irrationality of the belief itself, by showing it was maintained in the face of clear contrary evidence known to the testator, or by demonstrating no rational basis existed for its formation and maintenance.

The judgment is also a cautionary illustration of the costs of probate litigation. Falk J expressed repeated concern about the proportionality of litigation costs in relation to a modest estate, and the broader impact on the family. Practitioners should note the emphasis on the ‘golden rule’ for solicitors instructed by aged or seriously ill testators, and the difficulties that can arise when it is not observed.

The decision matters to probate practitioners, will draftsmen, contentious probate litigators, and medical experts instructed in capacity disputes. It reinforces that the propounder of a will bears the ultimate burden of proof on capacity (subject to the evidential presumption where a will is rational on its face), and that expert evidence which fails to express a positive conclusion may be insufficient to discharge that burden.

Verdict: Appeal dismissed on Grounds 1, 4, 5 and 6. The Deputy Master’s refusal to admit the wills to probate was upheld insofar as the findings relating to testamentary capacity and the preference for Professor Jacoby’s expert evidence were concerned. Grounds 2 and 3 (concerning the test for delusions) were adjourned for three months to allow the parties an opportunity to reach agreement, with the judge expressing concerns about some, but not all, of the specific findings of delusion.

Source: Clitheroe v Bond [2021] EWHC 1102 (Ch)