Re Clitheroe [2021] WTLR 449

WTLR Issue: Summer 2021 #183






The claimant (C) and the defendant (D) were the surviving children of the deceased. Her other child, E, had died of cancer without children. Although the deceased had been close to D and D’s daughter, this changed after a disagreement between D and the deceased about E’s medication, when the deceased threatened that she would not forgive or speak to D again. The Deputy Master found that D was not responsible for the estrangement and that the deceased had irrationally maintained that it was D who cut her out rather than the other way around. E’s death had a profound effect on the deceased, who ‘took to her bed’ and remained bedridden until her death.

The Deputy Master found that allegations made by D that her father had sexually abused her could not be impugned. There had been letters written by the father to D detailing the abuse and these letters had been used by the deceased in the divorce proceedings against the father. Just before E died, however, the deceased started to maintain and continued to maintain that the allegations of abuse were untrue and that there were no letters. The Deputy Master found that this was irrational, to the point of being delusional.

The deceased made two wills, both after E’s death. Both appointed C as executor; the first gave jewellery to D and the deceased’s grandchildren; and the second gave cash to the grandchildren and nothing to D. Both left her residuary estate to C. The deceased had provided written and telephone instructions for both wills. In both cases the notes had been delivered by C.

  1. (1) For the first will she wrote that D was a ‘shopaholic & would just fritter it away’ and told a legal executive at the solicitor firm that, for that reason, she did not want D to have anything apart from a diamond ring.
  2. (2) For the second will, she told the solicitor that she wanted to leave everything to C as he did everything for her. In her notes, among other things, she accused D of theft of a number of items from the deceased (‘ransacking the bungalow’) and E’s property after her death; even though there had been attempts by D at reconciliation, which had failed, the deceased wrote that she had not seen D since C’s marriage; she wrote that, if left to D, the deceased would have ‘starved to death’.

Although instructions for both wills were not taken in accordance with best practice and the ‘golden rule’ was ignored, the Deputy Master formed the impression that the deceased gave ‘detailed and believable reasons which she expressed directly and without equivocation’.

C brought an action to propound both wills. D disputed their validity, on the basis of a lack of testamentary capacity and, in the case of the second will, fraudulent calumny: that the deceased suffered from a complex grief reaction from around the time of E’s death and a continuing affective disorder manifested by depression and insane delusions regarding D, together with a poisoning of her mind against D. The Deputy Master held that the claim of fraudulent calumny was not established (and this decision was not appealed) but that, as the deceased had suffered from insane delusions regarding D and so she lacked testamentary capacity in respect of both wills, he refused to admit either will to probate.


C appealed, on five grounds:

  1. (1) The first ground was that the correct approach for determining whether a testator had testamentary capacity was that of the Mental Capacity Act 2005 (the MCA), rather than that set out by Cockburn CJ in Banks v Goodfellow (1869-70), at 565 (the Banks test). At the trial, however, there had been no dispute that the Banks test was the correct test. On that basis, the judge held that it would not be in the interests of justice to allow that question to be pursued on appeal although, if it were, the judge would have concluded that the Banks test had not been overridden by the MCA.
  2. (2) The second and third grounds related to the test for ‘delusions’ and the application by the Deputy Master of the evidence in relation to that test. The judge held that, for a delusion to exist, the relevant false belief must be irrational and fixed in nature, and out of keeping with the person’s background. It was not an essential part of the test to demonstrate that it would have been impossible to reason the relevant individual out of the belief if the requisite fixed nature could be demonstrated in another way. If that were the case, however, it would be one way to demonstrate that a belief amounted to a delusion.
  3. The judge was concerned that the Deputy Master might not have taken full account of the need for the relevant beliefs to be fixed. D applied to admit new evidence and raised other grounds in a respondent’s notice. 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 determine whether, through mediation or otherwise, they are able to reach an agreement that does not require the expense either of a further hearing’ (para [143]).
  4. (3) The fourth and fifth grounds concerned the preference of the Deputy Master for the evidence of D’s expert on the questions whether, and the extent that, the deceased suffered from an affective disorder; whether her beliefs were properly characterised as delusions; and the threshold applied by the Deputy Master to these questions. D’s expert had concluded that the deceased had been suffering from an affective disorder that included complex grief reaction and persisting depression as a result of E’s death and they impaired her testamentary capacity. C’s expert, however, had accepted that he could not say that the deceased did not have an affective disorder.
  5. The judge upheld the Deputy Master’s decision that C bore the burden of proving that the deceased had testamentary capacity and had failed to do so. Further, the Deputy Master had not given inadequate or irrational reasons for his preference of D’s expert and had been entitled to conclude that there was a causal link between E’s illness and the delusions.
JUDGMENT FALK J: Introduction [1] This is an appeal against a decision of Deputy Master Linwood on 21 May 2020 in a bitter probate dispute (the ‘Decision’). By the Decision the Deputy Master refused to admit to probate two wills executed by the deceased, Mrs Jean Mary Clitheroe, on 21 May 2010 and 3 December …
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Counsel Details

Vikram Sachdeva QC (39 Essex Chambers, 81 Chancery Lane, London WC2A 1DD, tel 020 7832 1111, email, Jack Anderson (39 Essex Chambers, as above) and Ruth Hughes (5 Stone Buildings, Lincoln’s Inn, London WC2A 3XT, tel 020 7242 6201, email, instructed by Irwin Mitchell LLP (40 Holborn Viaduct, London EC1N 2PZ, tel 020 7404 3600, email for the appellant.

Thomas Dumont QC (Radcliffe Chambers, 11 New Square, Lincoln’s Inn, London WC2A 3QB, tel 020 7831 0081, email and Edward Hicks (Radcliffe Chambers, as above), instructed by Birkett Long LLP (9 Perseverance Works, Kingsland Road, London E2 8DD, tel 020 3126 6533, email enquiry@ for the respondent.

Cases Referenced

Legislation Referenced

  • Mental Capacity Act 2005