In this recent High Court case, the Judge had to decide whether either of the Deceased’s two Wills were valid on the basis of whether she had sufficient testamentary capacity, and/or whether the Wills resulted from the ‘poisoning of her mind’ by her son.
It might seem strange that there are two Wills involved, as usually only the last Will is relevant, but this assumes the last Will is valid. The Claimant in this case argued that not only was the last Will invalid, but also the one before that, meaning Jean’s estate should be distributed under the Intestacy Rules which apply when there is no (valid) Will.
Background
Jean Clitheroe (Jean) was married to Keith Clitheroe between 1961 and 1982 when they divorced, having had 3 children; Deborah, Susan (Sue) and John. Deborah sadly died from cancer in 2009, at 46 years old.
In the latter years of her life, Jean was bedridden from long-standing ailments, until her death on 11 September 2017 at the age of 76. The cause of death was recorded as sepsis, anaemia, renal failure and ulcers.
Jean left two Wills in broadly similar terms, prepared by her solicitors, Powis. The first Will dated 21st May 2010 appointed John as executor and trustee and he would receive the residue of her estate after small bequests to Sue and to Charlotte (grandchild). There was a further Will dated 3rd December 2013 which changed this to give three grandchildren £5,000 each, with John taking residue. The estate was worth around £350,000.
Jean had given reasons to her solicitors for excluding her remaining adult child, saying Sue was "a shopaholic and would just fritter it away”. The solicitor had recorded in an attendance note saying Sue was a spendthrift and would just spend her inheritance.
Sue disputed the validity of the Wills and asked the Court to find that Jean died intestate, saying that Jean lacked testamentary capacity. Specifically, that Jean had suffered from complex grief over Debbie’s death and had an affective disorder beyond it leading to depression and insane delusions regarding Sue, together with a "poisoning of her mind" against Sue.
The Evidence
The Court had to deal with a lot of factual allegations and accusations, as to Sue being a shopaholic or spendthrift, denying access to grandchildren, whether Jean had been pressurised about her property, and whether Sue had stolen items from the deceased. These issues needed to be established to determine whether there was any rational basis on which Jean could have held reasonable beliefs, and whether John encouraged those reasonable beliefs, not caring whether the underlying facts were true or false. A key question was whether Jean’s hatred for Susan was as a result of the poisoning of her mind (known legally as ‘fraudulent calumny’), such that to the Wills should be declared invalid.
The Law
The Doctrine of fraudulent calumny is as follows: if Person A poisons the Testator's mind against Person B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions against their character, then the Will is liable to be set aside. The person alleged to have been poisoning the Testator's mind must either know that the aspersions are false, or not care whether they are true or false. If they believe them to be true, even if they turn out to be false, this would not be sufficient to establish a claim. Where this doctrine is claimed, the burden of proof is on the Claimant, and the evidence required will be cogent.
The law as to testamentary capacity was set out in the well-known case of Banks v. Goodfellow 1870 LR5 QB 549:
"It is essential … that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made..”
Where a Claimant claimed a will is invalid due to lack of testamentary capacity, so long as they can show a 'real doubt' about capacity, the burden of proof shifts to the Defendant to show the Testator did have testamentary capacity.
The Judge’s Findings
On the evidence, the Judge found that there was no rational basis for Jean to have changed her mind so as to believe, contrary to what she believed for many decades, that the allegations in relation to abuse of Sue (at the hands of Keith) were false. The Judge also found that the deliberate and repeated delay of provision to pain relief to one’s child suffering excruciating pain was capable of no rational explanation.
The Judge further found that Jean's disapproval of Sue's spending was irrational and not based on fact, and that the belief appeared to be on all the evidence to have been delusional. The Judge found that Sue was in no way responsible for the estrangement from her mother and it was clear that Jean had not only taken against Sue, but had also irrationally maintained that it was Sue who cut her out not the other way round. This amounted to be a further delusion, and an irrational one.
In conclusion, the Judge found that Jean did suffer from a complex grief reaction or other affective disorder as a result of Deborah’s death, and that John had failed to prove that she did not so suffer. The Judge found that Jean’s mind had been poisoned against Sue by the matters complained of and there were delusions for which there was no rational basis for Jean to have held and, again, John had not displaced the evidential burden upon him.
Fraudulent Calumny?
The question here was whether John i) induced or encouraged Jean to exclude Sue, ii) for reasons which were false and iii) which he knew to be false or did not care whether they were true or false.
The burden of proof was on the Defendant, Sue. Although the usual standard of proof is the balance of probabilities (at least 51%) where there is an allegation of fraud, the strength of the evidence has to rise in proportion to the seriousness of the allegation. The Judge held that in this case the evidence was insufficient, for example no direct evidence of John encouraging his mother's beliefs about Sue in that regard. A finding of fraudulent calumny was not made out.
This did not matter much, as the Judge held, on the basis of the above, that neither the 2010 nor the 2013 Wills could be admitted to probate. On the balance of probabilities, John had failed to prove that Jean was not suffering from an affective disorder of the mind affecting her testamentary capacity.
Lessons
There is a Golden Rule in the practice of private client lawyers that where there is any doubt whatsoever as to a person's testamentary capacity, by age or other matters which might affect the mind, a doctor’s consultation should be made before the Will is executed. The doctors should be those who have a grasp of the medico-legal question of testamentary capacity. That was not done here. There was however detailed attendance notes made by the solicitors in recording the Deceased's instructions as to the excluding of her daughter from her estate. However, given the findings on the Deceased lacking testamentary capacity, this merely provided further evidence of the irrationality of her beliefs as to the child she was excluding.
This case provides helpful and recent consideration of the principal or fraudulent calumny and, whilst in all civil claims the test is the balance of probabilities, where fraud is alleged the kind of evidence required will need to be all the more cogent.
The case: Clitheroe v Bond [2020] EWHC 1185 (Ch)
This article was written by Toby Walker, Dispute Resolution Partner at Allan Janes LLP. Toby and his Team have specialist expertise in the area of contested probate, trusts and proprietary estoppel claims. Please do not hesitate to contact us for a free no obligation telephone discussion.