Jean Clitheroe had three children, Debra, Susan and John. On 19 December 2009, Debra sadly died of cancer. Jean was, understandably, deeply affected by Debra's illness and death and as Jean put it, "took to her bed" from the day of Debra's death in late 2009. Jean remained bedridden until her death on 11 September 2017.
Jean made two wills in similar terms, the first of these was 2010 and the second in 2013. By the one dated 21 May 2010 ("the 2010 Will") Her son, John was appointed executor and residuary beneficiary apart from some small gifts of chattels to her daughter, Susan and her granddaughter, Charlotte. In the second will dated 3 December 2013 ("the 2013 Will") Jean changed made some amendments to her wishes that were not included in the 2010 Will. The changes were to give her grandchildren Charlotte, Holly and Sophia £5,000 each; but again her son John took the residuary estate.
Her daughter, Susan, did not receive any significant benefit under the terms of either of will. The reason that Jean gave to her solicitor for this decision was that Susan was a "shopaholic and a spendthrift" and will squander her inheritance. She also accused her of having broken up her parents’ marriage on false allegations of child abuse and stealing.
Jean's son, John sought an order from the court declaring the 2013 Will was valid, or that the 2010 Will was valid. Susan defended John's claim asserting that both wills were invalid on the basis that Jean lacked the required testamentary capacity. Susan's request was made on the grounds, that her mother was suffering from a complex grief reaction as a result of Debra's illness and untimely death in 2009 causing her to suffer with persistent depression and form insane delusions regarding Susan and otherwise poisoning her mind against her.
The court applied the principle recognised in Key v Key  that an affective disorder, such as a complex grief reaction, can impair a person's capacity.
The court considered the test for testamentary capacity is as set out in the leading authority of Banks v Goodfellow  being:
Under that test, the testator should understand:
- the nature of his act and its effect
- the extent of the property of which he is disposing; and
- the claims to which he ought to give effect.
And 4. must not have a disorder of the mind or insane delusion, which ultimately brings about a disposal of his property which he would not have made if he had been of sound mind.
The court also considered what was the correct test for the presence of delusions, holding it to be this from leading textbook Williams, Mortimer and Sunnucks:
“Delusion has been variously defined, but to almost every definition some objection can be raised. Perhaps the best legal test for determining whether delusion is present in a person’s mind is this: “You must of necessity put to yourself this question and answer it, “Can I understand how any man in possession of his sense could have believed such and such a thing?” And, if the answer is, “I cannot understand it,” then it is of the necessity of the case that you should say that the man is not sane”.
The court also considered the meaning of an insane delusion in relation to the test laid down in Banks v Goodfellow. To answer this, the court considered the question, "can I understand how any man in possession of his senses could have believed such and such a thing?". If the belief cannot be understood, then the person will not have the required capacity.
Finally, the court considered the proper approach to be taken concerning retrospective capacity assessments. The expert's job was to determine whether on the balance of probabilities and on the available evidence, the deceased whether Jean had testamentary capacity.
Susan also ran an argument of fraudulent calumny in that John may have encouraged Jean's opinions of Susan, but this was not successful as there was no evidence of him having done so.
The court held that the 2010 and 2013 Wills were invalid based on a lack of testamentary capacity and that Jean had died intestate. This meant that Jean's estate would be equally divided between John and Susan as her two surviving children.
Susan also tried to run an argument that the wills were invalid on the basis of fraudulent calumny which is where a where a beneficiary makes a false representation, or a gradual series of false representations, to the testator/ix about the character of a potential beneficiary inducing the testator/ix to leave more monies to the perpetrator of the false representation or to not leave monies (or leave less monies) to the potential beneficiary who would otherwise have the natural expectation that they would benefit.
However, this was unsuccessful. It was held that there was no direct evidence of John having encouraged his mother’s beliefs about Sue without regard to whether they were true or not.
This is a compelling case not only for contentious probate solicitors but also for private client solicitors as a reminder of the importance of their evidence. In this case, the drafting solicitor had not attempted to take instructions from Jean in person, and John had been involved throughout the process and knew of the content of the wills. They had not obtained an opinion as to capacity or supervised execution. In respect of the 2010 will Jean had not eaten or drunk, and was refusing her medication, during the period in which instructions were taken, draft provided and approved and the final document signed. The courts were critical of the solicitors. Practitioners have to be particularly careful when clients have recently suffered a bereavement and to err on the side of caution and obtain an opinion as to capacity if there is any doubt whatsoever (the so-called Golden Rule) or where potentially contentious instructions are given.
Permission to appeal this case has been granted and there are two issues of law raised by the appeal being whether the Banks v Goodfellow test remains the test for testamentary capacity or whether the Mental Capacity Act 2005 should now apply (albeit it various cases since the introduction of the Act have confirmed Banks v Goodfellow remains good law) and, secondly, what the proper test for establishing an insane delusion is.