Analysis
Jean Mary Clitheroe (the deceased) had three children, one of whom (her elder daughter) predeceased without issue. The appellant and respondent were her surviving children, the latter of whom was a victim of sexual abuse committed by her father. This had been detailed in letters written by her father and which were used in divorce proceedings by the deceased. The deceased had been profoundly affected by her elder daughter’s terminal diagnosis and death and became estranged from the respondent to the point that she started to maintain, and continued to maintain until her own death, that the allegations of abuse were untrue. The deceased made two wills, both after her elder daughter’s death, which were substantially in favour of the appellant.
By an order made on 21 May 2020 Deputy Master Linwood refused to admit either of the two wills to probate respectively on grounds of testamentary incapacity, having found on the evidence that the allegations of sexual abuse could not be impugned, that the deceased’s denial of those allegations was irrational to the point of being delusional, and that she was suffering from an affective disorder relating to her projection of guilt about outliving her elder daughter onto the respondent. The appellant appealed on six grounds:
- (1) the Deputy Master had applied the wrong approach for determining the deceased’s testamentary capacity by using the test in Banks v Goodfellow [1869-70] rather than the test under the Mental Capacity Act 2005;
- (2) if Banks remained good law, the Deputy Master had erred by misapplying the test for delusions, in particular by failing to consider whether it was impossible to reason the deceased out of her false belief if it could be demonstrated in another way that such belief was irrational and fixed in nature;
- (3) the Deputy Master had misapplied the test for testamentary capacity in the light of the evidence and/or made findings as to delusions which were not open to him;
- (4) the Deputy Master had given inadequate and/or irrational reasons for preferring the evidence of the respondent’s medical expert to that of the appellant’s on the question of whether the deceased suffered from an affective disorder and/or the nature or degree of any disorder, and/or whether any beliefs she had were properly characterised as delusions;
- (5) the Deputy Master applied too low a threshold for finding that the deceased had an affective disorder causing delusional beliefs, and/or that her beliefs were delusional and/or that she otherwise lacked testamentary capacity; and
- (6) the Deputy Master wrongly failed to uphold the validity of at least one of the wills when that was the only lawful decision open to him on the evidence.
By a judgment handed down on 4 May 2021 (Re Clitheroe [2021]), the judge dismissed the appeal, finding against the appellant on the first, fourth and fifth grounds. She also observed that the sixth ground did not raise issues not raised by the other grounds. However, the judge was concerned that the Deputy Master might not have taken full account of the need for a false belief to be fixed in order to amount to a delusion, and that it was not straightforward per se to classify as a delusion the deceased’s belief that the respondent was a shopaholic or spendthrift. Rather than direct a further hearing on these issues, the judge adjourned the appeal on the second and third grounds for the parties to reflect and attempt to reach an agreement without the expense of a further hearing. Regrettably, attempts at mediation failed and this present hearing resulted, following a failure to agree that the outstanding issues could be dealt with on the papers.
Held (allowing the appeal):
Although the appeal on the second and third grounds had been adjourned, the judge had found that the relevant false belief must be irrational and fixed in nature, but that it was not an essential part of the test that it be demonstrated the impossibility of reasoning the relevant individual out of that belief. Moreover, those two grounds could not be considered in isolation from the outcome of the rest of the appeal and from the findings of fact as a whole. The appellant bore the burden of proof and, though the appeal had to be allowed on the basis that any doubt as to the materiality of any error in the decision ought to be resolved in his favour, the correct course – consistent with the overriding objective – was to remake the decision in respect of the second and third grounds rather than remit it for a hearing by a different judge. The Deputy Master’s findings on the evidence were upheld; that the deceased’s false belief, being irrational and fixed, was a delusion as a result of her affective disorder relating to the terminal illness and death of her elder daughter. The appellant had failed to displace the evidential burden that no delusion as to the abuse had influenced the making of the wills and this was a sufficient basis on its own for the judge to conclude that neither will should be admitted to probate.
The Deputy Master had also made findings in the alternative as to whether the deceased’s mind had been poisoned against the respondent and there was some doubt that he had made a clear distinction on the facts of the case between a challenge on the basis of delusions and a challenge based on poisoning of the mind. In the event, it was unnecessary to decide the point as the decision on the issue of delusions was sufficient. It followed that there was no need to rely on other findings made regarding delusions, such as alleged thefts or that the respondent was a shopaholic or spendthrift. The findings were best understood, and made most sense, as a list of symptoms of an affective disorder. Accordingly, remaking the decision, the appeal on the first, fourth and fifth grounds was dismissed, the appeal on the second and third grounds was allowed but the net effect came to the same result that the deceased had died intestate. The sixth ground was dismissed.
JUDGMENT FALK J: Introduction [1] This is my decision following a further hearing in this appeal, my initial decision in which was handed down on 4 May 2021 and can be found at [2021] EWHC 1102 (Ch) (the ‘First Judgment’). As explained in the First Judgment at 142-143 and 153, grounds 2 and 3 of …Continue reading "Clitheroe v Bond [2022] WTLR 1217"