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A recent case has underlined the importance of obtaining cautious and considered legal advice when Wills are put in place. In Clitheroe v Bond, Mrs Clitheroe died at the age of 76 leaving a UK estate of £325,000 – and a dispute over who should inherit it. 

The background

  • In her final and her penultimate Wills, Mrs Clitheroe had left her residuary estate to her son, John, and expressly omitted her daughter, Susan, as a beneficiary on the basis that Susan was a “spendthrift” and a “shopaholic” who would just “fritter [her inheritance] away”.

  • When her mother died, Susan challenged that the Wills were invalid because Mrs Clitheroe had lacked the requisite level of mental capacity to make a Will; she claimed that a bereavement had resulted in her having “insane delusions” about Susan.

  • Susan also claimed that her mother’s mind had been “poisoned” by John, and so a challenge was also made on the grounds of fraudulent calumny (ie that John had used false representations to poison his mother’s mind against Susan and thereby caused her to be excluded, to his benefit, from the Wills).

  • Susan challenged both Wills (one from 2010, one from 2013) because both left the residue to John. Accordingly, both needed to be held to be invalid. If John failed to prove that his mother had testamentary capacity when both the Wills were made, the estate would be split equally between Susan and John under the intestacy rules.

The trial

  • Extensive evidence was considered during the hearing, including over 5,000 pages of contemporaneous medical notes associated with Mrs Clitheroe’s poor health, multiple witness testimonies and, importantly, two independent medical experts who provided the court with their psychiatric analysis of the factual evidence.

  • On the basis of this evidence, the Court held that Mrs Clitheroe did not have testamentary capacity when she made her Wills as she had been suffering from insane delusions at the relevant time. John had failed to prove that his mother was not suffering from “…an affective disorder of the mind…and delusions which affected her testamentary capacity” at the time she made the Wills.

  • Susan was therefore successful in her claim, but not on the basis of fraudulent calumny which she ultimately failed to prove. The judge’s conclusion was that “…with any allegation of fraud the strength of the evidence has to rise in proportion to the seriousness of the allegation.

Lessons

  • The question as to whether a person does, or does not, have testamentary capacity is a complicated one which must be determined by medical experts. Where there are doubts as to a client’s capacity, the courts expect solicitors to follow the so-called “Golden Rule” and to obtain a medical opinion.

  • It is helpful for evidence and records to be retained as far as possible. The 5,000 pages of contemporaneous medical notes in this case formed the basis for the Court’s conclusions as to testamentary capacity. Without such extensive evidence, it may well be the case that the Wills would have been upheld.

  • If an affirmatory medical report is obtained and, ideally, the Will is witnessed or approved by a medical expert, the corresponding Will should be very difficult to challenge on the basis of testamentary capacity. However, there are still arguments that may exist regarding the validity of the Will.

  • One of the arguments in Clitheroe v Bond was that the Wills were procured by fraudulent calumny. Again, evidence will be crucial. If the party upholding the Will can point to evidence (such as attendance notes) as to why the testator left his/her estate in this manner, a challenge will be difficult to bring.

  • Any decision to disinherit a potential beneficiary inevitably increases the risk of a challenge. If an exclusion is desired, there are options which can mitigate the risk of any validity (or financial provision) challenge both in terms of lifetime giving and the preparation and execution of the relevant Will.

Cases such as Clitheroe v Bond demonstrate the fallout of not taking considered and careful steps to avoid conflict further down the line. Even if a case is ultimately successful, considerable legal costs can be incurred in defending the Will. For high value estates, where the incentive for a challenge may be greater, the need to consider such steps is even more important.

If you require further information about anything covered in this briefing, please contact Adam Carvalho, Richard McDermott, Joshua Pugsley, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, June 2020

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