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3 June 2020 0 Comments
Posted in Private Client

Clitheroe v Bond – A test case in disinheriting family members and the necessary mental capacity

Author headshot image Posted by , Trainee Solicitor

In England and Wales, there is testamentary freedom. This means that a client of sound mind is perfectly entitled to make a Will for capricious, frivolous, mean or even bad reasons without the Will being invalid.

Whilst a client’s dependants may have the legal right to claim against the estate if no provision is made for them, the client does not have any obligation to include them in the Will. This means that the decision to disinherit family members is largely a moral one.

However, the recent case of Clitheroe v Bond has highlighted the importance of ensuring that any client who is considering disinheriting family members has the necessary mental capacity to make a Will.

In this case the deceased, Jean Clitheroe, had made two Wills; one in 2010 and another in 2013. Both Wills purported to disinherit Jean’s daughter, Susan. Following Jean’s death, her son, John, sought an order declaring that the 2013 Will was valid or, alternatively, that the 2010 Will was valid.

Susan defended the action asserting that the Wills were invalid. She argued that, at the time the Wills were made, Jean was suffering a complex grief reaction brought on by the death of her eldest daughter. Jean’s reaction to the bereavement had resulted in her forming a number of delusional beliefs about Susan; not least that she was a ‘shopaholic’ and ‘spendthrift’ who would simply squander any inheritance she was left. It was Susan’s case that these beliefs constituted ‘insane delusions’ and so meant that Jean lacked the relevant mental capacity.

The court determined that, in order to establish whether a person is suffering from ‘insane delusions’ one must ask “Can I understand how any man in possession of his senses could have believed such and such a thing?”. If the belief cannot be understood then the person will not have the required mental capacity.

Underlying the decision in this case is an important distinction between the way mental capacity is assessed during a person’s lifetime and how it is assessed retrospectively following their death. In life, it’s possible to challenge a person on their beliefs and determine whether those beliefs are indeed understandable. In death, a person can no longer be challenged directly and so the court must rely on any assessments conducted during their lifetime. If such assessments have not been undertaken, then the opportunity to challenge the person on the foundations of their beliefs will have been lost. Instead the court will be entirely reliant on other written records and evidence from witnesses to establish whether such a belief is understandable.

In this case, the file of the solicitor who prepared Jean’s Will was lacking in detail. There was little direct contact with Jean and a limited exploration of her wishes and intentions. The court ultimately determined that Jean lacked mental capacity. There was insufficient evidence to show that, on the balance of probabilities, Jean’s beliefs about Susan had any rational basis. Therefore, both the 2010 and 2013 Wills were declared invalid and Jean died intestate.

Clitheroe exemplifies why it is so important for solicitors to take the time to explore their clients’ wishes and motivations when preparing a Will. Questionable reasoning should be challenged, however uncomfortable a conversation that might be. If these steps had been taken in Jean’s case, then it is possible that significant heartache (and legal fees!) might have been avoided.

Contact us to find out how we can help with making a Will – ensuring that both your assets and your wishes are protected.

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