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This is something which the Court had to consider in the recent case of Clitheroe v Bond .
The case relates to the Estate of Jean Clitheroe who died in September 2017. She had three children, namely, a son and two daughters, one of whom had died in 2009. In 2010 she made her first Will effectively leaving the bulk of her estate to her son John Clitheroe and excluding her daughter Susan Bond.
She made a new Will in 2013, which differed only very slightly to the earlier Will but in the main it also excluded Susan. John was appointed sole executor of the estate in both Wills as well as being the main beneficiary after gifts of chattels and small cash legacies to grandchildren.
Susan challenged the validity of both Wills on grounds that her mother lacked testamentary capacity at the time the Wills were executed. She argued that her mother suffered from a complex grief reaction following the death of her other daughter. Susan claimed that her mother’s condition led to a continuing affective disorder which caused depression and “insane delusions” about Susan including a belief that Susan was a “shopaholic”, that she would “fritter away” any inheritance and she also held a belief that Susan had stolen various items from her. None of these beliefs were supported by any evidence.
The Court heard a substantial amount of evidence including that from medical experts on the question of capacity and found that the beliefs which Jean held about her daughter were “irrational” and “delusional” and the burden was on John to prove that Jean did not suffer from a grief disorder that affected her testamentary capacity. He was unable to do so.
Susan asked the Court for a Declaration that both the 2010 and 2013 Wills were not valid and for the estate to be distributed in accordance with the rules of intestacy which would give her an equal share of the estate with her brother. The Court agreed and the Estate is now to be divided equally between Susan and John under the intestacy rules.
This judgement reinforces the fact that the capacity of a testator is not easy to assess when taking instructions for a Will and where the testator’s reasons for making a Will in particular terms are irrational or delusional then the validity of such Wills can be challenged.