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Affective disorders, complex grief reactions and testamentary capacity

Increasing life expectancy and concomitantly increasing numbers of people living with dementia are commonly cited as being one of the main factors driving an increasing number of probate disputes in which the issue in question is whether the deceased had the necessary capacity to execute a valid will due to the onset of dementia. However, recently the High Court of England and Wales has had to consider a less frequent cause of lack of capacity: insane delusions.

The long-established test for testamentary capacity in disputes arising after the testator’s death is that set down in Banks v Goodfellow in 1870. For a testator to be judged to have had testamentary capacity, the court must be satisfied that he:

1. Understood the nature of making a will and its effects; and

2. Understood the extent of the property of which he is disposing; and

3. Was able to comprehend and appreciate the claims to which he ought to give effect; and

4. Had no disorder of mind that poisoned his affections, perverted his sense of right or prevented the exercise of his natural faculties in disposing of his property.

In cases in which the deceased was suffering from dementia, the argument usually concerns the first three of these four questions. In the case of Clitheroe v Bond, [2020] EWHC 1185 Ch, in which judgement was published on 21 May 2020, all the parties were agreed that the deceased testatrix, Jean Clitheroe, had capacity generally when she executed a will in 2010 and again in 2013. There was no evidence of dementia and the medical professionals involved in her care had always assessed her as having the capacity to give instructions in relation to her own personal care and treatment. What the parties could not agree on was whether Mrs Clitheroe was subject to insane delusions concerning one of her three children when she had made her two wills, and therefore had lacked testamentary capacity according to the fourth Banks v Goodfellow criteria.

The facts, briefly, were that Keith and Jean Clitheroe married in 1961 and had three children, Debra born in 1963, Susan born in 1967 (the Defendant) and John, born in 1968. Mr and Mrs Clitheroe divorced in 1982, after Mrs Clitheroe discovered that Mr Clitheroe had been abusing their daughter Susan. In 1986 Debra developed and was successfully treated for skin cancer. Sadly it returned in 2007 and was this time diagnosed as terminal. She died in December 2009, at just 46 years of age. Nobody disputed that Mrs Clitheroe, who had been particularly close to and reliant upon Debra, took her diagnosis and death badly. The evidence accepted by the judge was that right up until the final two days of Debra’s life, Mrs Clitheroe was in denial about Debra’s diagnosis. Mrs Clitheroe was distraught at Debra’s death and shortly thereafter took to her bed, remaining bed-ridden until her death in September 2017, aged 76.

Mrs Clitheroe and Susan had enjoyed a good relationship, but that changed dramatically in the days leading up to Debra’s death, when conflict had arisen between them as to whether Debra should be given morphine. Witnesses recollected that Debra had been in agony but that Mrs Clitheroe, still in denial about her illness and imminent death, refused to permit morphine to be administered. Mrs Clitheroe told Susan that if she called the Macmillan nurse to administer morphine, she would never forgive her, and would never speak to her again. Susan described making the decision to call the nurse to administer pain relief for her sister, against her mother’s wishes, as one of the most difficult that she had ever had to make, but she did so as she could not bear to see Debra continue to suffer.

Shortly after Debra’s death, Mrs Clitheroe did begin to distance herself from Susan, and became reliant upon John for her care. In 2010 and again in 2013 John was involved in arranging for a local solicitor to draw up new wills for Mrs Clitheroe, in which Susan and her daughter Charlotte were effectively disinherited. Under both wills John was appointed the executor and the residuary beneficiary. With both wills, Mrs Clitheroe had written a note listing numerous criticisms of and allegations against Susan to explain why she did not wish to benefit her.

John sought to propound the 2013 and 2010 wills. Susan disputed their validity, and asked the court to find that Mrs Clitheroe died intestate on the basis that she had suffered from a complex grief reaction from about the time of Debra’s death, and a continuing affective disorder beyond it, which were manifested by her depression and insane delusions about Susan together with a poisoning of her mind against her.

Despite the existence of two wills, which had been executed and witnessed in accordance with the requirement of the Wills Act 1837, there were sufficient circumstances to rebut the presumption that they had been made by a person of competent understanding. The burden of proof was therefore on John, asthe executor seeking to propound the 2013 will or alternatively if that was found to be invalid, the 2010 will, to satisfy the court that Mrs Clitheroe had possessed the requisite testamentary capacity for them to be valid. An additional requirement in relation to testators who have been found to have been suffering from delusions is that the person propounding the will must also establish either that the testator was free of them at the time of giving instructions for the will or that the delusions did not affect the dispositions in the will (Smee v Smee (1879)).

The issues that the court had to decide were therefore (i) whether Mrs Clitheroe was suffering from an affective disorder as a result of Debra’s death (ii) whether, as a symptom of that affective disorder Mrs Clitheroe suffered from insane delusions regarding Susan or otherwise her mind was poisoned against Susan when she made her wills and (iii) whether any such delusions or poisoning of Mrs Clitheroe’s mind influence the making of either her 2010 or 2013 will.

Was Mrs Clitheroe suffering from an affective disorder?

An “affective disorder”, also known as “mood disorder” is a psychological disorder characterised by abnormalities in how the sufferer thinks and feels. The term encompasses a number of types of disorder, including for example different types of depression, phobias, obsessive compulsive disorders and post-traumatic stress disorder. Susan also argued that her mother had suffered a complicated grief reaction, in which the acute grief normally experienced following the death of a loved one becomes a debilitating mental health condition that worsens over time rather than getting better.

Both John and Susan called experts to give evidence. The court preferred the opinion of Professor Jacoby, who gave evidence on behalf of Susan, which was that Mrs Clitheroe had suffered from an affective disorder that constituted a ‘disorder of mind’ within the Banks v Goodfellow test, and that he used this term because it encompassed both a complex grief reaction that had begun even before Debra’s death and the persistent severe depression that had followed in the years after. In the case
of Key v Key (2010) (in which Professor Jacoby had also given evidence), “the court had accepted that the testator had experienced an affective disorder in the form of an overwhelming bereavement reaction that had impaired his testamentary capacity.” However, whereas in Key v Key the consequence of the affective disorder had been that the testatrix in that case had not had the mental energy to make the decisions of her own, Professor Jacoby opined that in Mrs Clitheroe’s case, if the court found her beliefs about Susan to be false, then those beliefs would be consistent with “the sort of delusional beliefs caused by an affective disorder.” Further, “delusional beliefs in affective disorders are most commonly delusions of guilt but commonly in older persons that guilt is “projected” onto other persons.” In Professor Jacob’s opinion, Mrs Clitheroe had probably projected her expressed guilt about outliving Debra onto Susan and thus these ideas had been ones that poisoned her affections, perverted her sense of right and prevented the exercise of her natural faculties within the meaning of the Banks v Goodfellow test.

As a symptom of that affective disorder, did Mrs Clitheroe suffer from insane delusions regarding Susan or otherwise was her mind was poisoned against her?

The court undertook a fact-finding exercise in relation to a number Mrs Clitheroe’s criticisms of and allegations against Susan and was satisfied that her beliefs were irrational and delusional. The court was careful to record that the principle of testamentary freedom, enshrined in English law, means that a testatrix “may disinherit for inadequate, capricious, mean or bad motives as long as that harsh judgment is not one that arose “…from some mental defect””. The court’s task is to identify when that line has been crossed – i.e., when does a belief become an insane delusion. There were two different authorities on the legal test for the presence of “insane delusions”.

Williams on Wills (10^th Edition) at [4.15]: “a delusion is a belief in the existence of something which no rational person could believe, and at the same time, it must be shown to be impossible to reason the patient out of the belief.”

William Mortimer & Sunnucks (21^st Edition) [10.25]” “You must of necessity put to yourself this question and answer it, ‘Can I understand how any man in possession of his senses could have believed such and such a thing?’ And if the answer you give is, ‘I cannot understand it,’ then it is of the necessity of the case that you
should say that the man is not sane (Boughton v Knight [1873])”

The Deputy Master asked counsel to make written submissions on these two tests and after careful consideration, came down in favour of the William Mortimer & Sunnocks test for eight separate reasons, which he set out in his judgement.

Applying that test to Mrs Clitheroe’s beliefs that she had held on the dates of executing the 2010 and 2013 wills, the court made findings of fact on many of them and found them to be insane delusions. For example, one of the reasons advanced by Mrs Clitheroe for dis-inheriting Susan was that she had falsely accused Mr Clitheroe of
abusing her, had broken up their marriage and was a ‘home-wrecker’. Mrs Clitheroe only began expressing these views shortly before Debra’s death. Up until then, she had always believed Susan. Indeed, the abuse came to light because Mrs Clitheroe herself had found letters written by Mr Clitheroe to Susan detailing the abuse he had perpetrated and would like to perpetrate against her, which Susan had hidden under her bed. The existence of these letters was widely evidenced in contemporaneous medical and other documents. There was no rational basis on which Mrs Clitheroe could change her mind, and her changed position was both delusional and irrational.

The court also found that Mrs Clitheroe’s mind had been poisoned against Susan, including by her defiance in calling a Macmillan nurse and as Professor Jacoby found, by projecting her guilt at outliving her daughter onto Susan.

Did those delusions and the poisoning of Mrs Clitheroe’s mind influence the making of either her 2010 or 2013 will?

This question could be answered very easily in the affirmative, given that Mrs Clitheroe had expressly stated that the various beliefs she held about Susan were the reason why she had been disinherited.

Accordingly, John had failed to discharge the burden of showing that Mrs Clitheroe had had testamentary capacity when she executed either the 2010 or 2013 wills and her estate passed under the intestacy rules to John and Susan in equal shares.