Successful challenge to a Will on the grounds of lack of testamentary capacity

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18 June, 2020

Susan Bond from Essex has successfully challenged her mother's Will which left her entire estate to her son, John. The testatrix was Jean Clitheroe, who died in September 2017 leaving an estate worth £325,000.

Mrs Clitheroe said that she disinherited Susan because she believed that she was a compulsive spender. Mrs Clitheroe made Wills with a firm of solicitors in 2010 and 2013. Both of these Wills attached detailed letters of wishes stating that she had deliberately left out Susan because she was 'a shopaholic and would just fritter it away'.

John was appointed as executor and trustee of both the 2010 and 2013 Wills and was due to inherit the residuary estate. Susan opposed his application for probate on testamentary capacity grounds, arguing that the 2010 and 2013 Wills were invalid because Mrs Clitheroe had suffered from a complex grief reaction soon after the death of one of her other children. After this, Mrs Clitheroe suffered from a continuing affective disorder characterised by depression and 'insane delusions' regarding Susan.

Susan also challenged the 2013 Will on the grounds of fraudulent calumny, claiming that her mother's delusions were largely due to a 'poisoning of her mind' by John. She therefore asked the Court to find that her mother died intestate (without a valid Will).

Challenging a will can be difficult and having strong evidence to support a claim that a Will is invalid, is paramount. Much of the evidence in this case came from documents provided by Mrs Clitheroe's solicitors to Susan's solicitors, in response to Susan's Larke v Nugus request.

John had to show that his mother was not suffering from an affective grief disorder, or if she did that it did not affect her ability to execute her Will. The medical evidence obtained was divided; the old age psychiatry expert called by John testified that 'there was no clear medical evidence that Jean lacked testamentary capacity' at the time of making the Wills and that it was 'unlikely' that she was suffering from an affective disorder.

However, the expert instructed by Susan stated: 'In my opinion, at the time she made both the 2010 and 2013 Wills the deceased was suffering from a disorder of mind within the meaning of the Banks v Goodfellow judgment, namely an affective disorder.'

The Court accepted that the medical opinion did not discharge the burden of proof on John, and it was to be presumed that Jean did not have testamentary capacity at the material times. However, in the matter of fraudulent calumny, the burden of proof lay with Susan, and the Court considered there was no direct evidence of John poisoning his mother's mind about Susan, knowing that his allegations were false. No fraudulent calumny was found.

Accepting that Jean had suffered from 'insane delusional beliefs', the Judge ordered that neither the 2010 nor the 2013 Wills could be admitted to probate through lack of testamentary capacity. The residuary estate was therefore divided equally between Susan and John.

If there is a suspicion that a Will has been prepared by a testator who lacks testamentary capacity, our team can assist by advising on the legal position and prospects of the potential challenge. Our advice will usually involve carrying out thorough investigations into the drafting and execution of the Will in addition to obtaining and reviewing medical records for the Deceased.

We offer a range of funding options and our team would be happy to discuss if you have any queries or concerns in relation to the validity of a Will.

For more information contact Olivia Jack in our Contesting a Will department via email or phone on 0333 207 1130. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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