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Will disputes; retrospective capacity assessments

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Posted by Kelly-Anne Carr on 18 June 2020

Kelly Anne Carr - Contentious Probate Lawyer
Kelly-Anne Carr Solicitor

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.


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 form insane delusions regarding Susan and otherwise poisoning her mind against her.




The court applied the principle recognised in Key v Key [2010] that an affective disorder, such as a complex grief reaction, can impair a person's capacity.


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.


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. The courts were critical. 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 or where potentially contentious instructions are given.  

About the author

Kelly specialises in all aspects of contentious probate work and disputed estates.

Kelly-Anne Carr

Kelly specialises in all aspects of contentious probate work and disputed estates.

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