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Ally Tow
Ally Tow,
SENIOR ASSOCIATE - CHARTERED LEGAL EXECUTIVE
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Testamentary capacity V fraudulent calumny
01 July 2020

Re Jean Mary Clitheroe (deceased) Clitheroe V Bond [2002] was a case involving a bitter family dispute between a brother and sister as regards the validity of two wills executed by their late mother, Jean.

The facts

Jean had three children, John, Susan and Debra. Jean and her husband Keith divorced in 1982 following allegations by Susan that he had sexually abused her as a child.

Sadly Debra died in 2009 from cancer. Jean was deeply traumatised by Debra’s death and she became bedridden shortly thereafter and remained so until her death in September 2017, aged 76. Her primary cause of death was sepsis.

Jean’s estate (which included the majority of Debra’s estate after she died intestate and Keith had agreed to sign the majority of it over to her) was valued at about £350,000.00. Jean had executed two wills, one in 2010 and one in 2013. Under the 2010 will Jean made some small chattel bequests to Susan and one of her grandchildren and then left the residuary estate to John. Under the 2013 will Jean made some specific monetary gifts to her three grandchildren and then left the residuary estate to John with no provision at all being made for Susan.

Jean had provided written instructions to her solicitors at the time of preparation of both wills explaining her reasons for excluding Susan. In her note in 2010 she said that Susan was a “shopaholic and would just fritter it away” and one of the solicitor’s attendance notes also recorded Jean saying that she was a “spendthrift and will just spend her inheritance”.

In 2013 Jean’s handwritten notes included wider allegations against Susan alleging lack of contact, Jean’s refusal to give Debra’s estate to Susan’s daughter, Charlotte, her spendthrift ways and an alleged ransacking of Debra’s house after her death.

Court proceedings

John issued proceedings propounding for both wills but Susan disputed them on the basis that Jean lacked testamentary capacity at the time of execution and/or that in the case of the 2013 will it had been executed as a result of fraudulent calumny exerted on Jean by John. She contended that Jean suffered from a complex grief reaction following Debra’s death and a continuing affective disorder beyond it which appeared by her depression and insane delusions regarding Susan together with a poisoning of her mind against Susan.

Susan maintained that the reasons Jean gave for excluding her from her wills were as a result of false beliefs induced by John, who knew them to be false or else did not care if they were true or false.

The 2010 Will

The court heard evidence that in mid-May 2010 John had called into the solicitors’ offices and hand delivered Jean’s written instructions for the preparation of her will. The solicitor’s attendance note recorded that John expressed concern that Jean was very poorly and so the will may need to be executed as quickly as possible. The note went on to state that Jean did not want her daughter to inherit. It also recorded the solicitor’s concern of no face to face meeting with Jean.

Following the preparation of a draft will and at the solicitor’s request she did then speak to Jean on the telephone. She noted that Jean was very clear what she wanted to do and that she did not want Susan to have anything other than a diamond ring. In that conversation, the solicitor read over the contents of the will to Jean and then arranged to leave an engrossed version with a covering letter and set of instructions for John to collect. On 21 May 2010 the will was then executed.

The 2013 Will

The court heard evidence that instructions for the preparation of this will were initially received by way of telephone. An attendance note of that conversation recorded that Jean now wanted to leave everything to John because he does everything for her and nothing to Susan.

The day after the telephone call John arranged to hand deliver a written note from Jean to the solicitors’ office wherein she confirmed that she was not leaving anything to Susan.

As well as the question of Susan’s alleged non-contact with her mother and her spending habits, the reasons given by Jean for this included a long list of items which she said Susan had stolen from her and also from Debra’s house.

On receipt of the written instructions, a draft will was prepared and sent to Jean but it was not executed until some 7 months later at a face to face meeting with Jean at her home. At that meeting, on 3 December 2013, Jean gave further written instructions as to why she wanted to exclude Susan. As well as the matters which had already been raised, she said that Susan had given up seeing her because she would not give Debra’s house to her daughter, Charlotte.

There was also some suggestion that Jean no longer believed Susan’s abuse allegations and that letters which Susan had claimed had been written by her father at the time of the alleged abuse had not existed.

Jean’s position regarding the abuse

The court heard evidence that from about 2009 just before Debra died Jean started to maintain and informed others that Susan’s allegations of abuse by her father were untrue, that there were no letters and that she had not seen or read any letters. She continued to do so until her death.

The court considered these beliefs were irrational to the point of being delusional for the following reasons:

  • Jean’s medical records recorded details of her account of finding the letters.
  • Susan’s own medical records referred to the abuse, Jean having referred Susan to counselling because of the abuse.
  • Susan gave evidence that her mother had found the letters and read them and believed them. She also said her mother had shown the letters to doctors and passed them to her solicitors and divorced Keith on the basis of them.
  • Susan’s evidence was borne out by contemporaneous independent correspondence from three medical practitioners.

Jean’s position regarding Susan’s spending habits

The court found that a review of Jean’s diaries showed that over a period of time she had taken regular shopping trips with Susan and Debra. From a review of all three of their financial records the court determined that none of them shopped just out of need and that shopping was a hobby and social event for all of them. Susan’s spending was higher than that of Debra and Jean but not in the court’s judgment to be wasteful in the manner of a spendthrift.

The court also found that Debra did not disapprove of Susan’s shopping habits as maintained by Jean and that Jean’s disapproval of Susan’s spending was irrational and not based on fact.

Jean’s position regarding the allegations of theft against Susan

Jean accused Susan of stealing numerous items from her but the court focussed on two issues only, namely the alleged theft of some trolls and some Swarovski crystals.

So far as the trolls were concerned, Debra had been a school teacher and kept a collection of trolls in her classroom. Just after she had executed her 2010 will and at a time when she was in hospital Jean had accused Susan of having stolen them from Debra’s classroom. This was denied by Susan and subsequently the court held it not to be true after hearing evidence from both Susan and some of Debra’s colleagues that these had been distributed to some of the children and teachers following Debra’s death.

In the circumstances, the court found that there was no one shred of truth in Jean’s allegation and that it was a wholly irrational delusion on her part.

As to the crystals, the court heard that the day after she had executed the 2010 will Jean had recorded in a handwritten note that she wondered if they could have been stolen by Susan and her husband, Peter. In a further note dated 2 April 2013 Jean that claimed that Susan had stolen them, the crystals having previously been kept in the loft at Debra’s property.

In yet another note dated 3 December 2013 Jean had then recorded that she wondered whether the crystals were in fact still in Debra’s loft. In the proceedings, John had initially pleaded that Susan had stolen the crystals. However, he subsequently withdrew his contentions in this respect. The court confirmed that in any event it had no hesitation in concluding that there was no truth in this allegation.

Testamentary capacity

The court heard evidence from two medical practitioners. Preferring one expert’s evidence over another the court accepted that Jean was at the material times suffering from an affective disorder which included complex grief reaction and persisting depression that impaired her testamentary capacity.

Relying on the medical practitioner’s expert evidence, the court concluded that Jean’s health resulted in her suffering from insane delusions, namely beliefs were are unfounded and irrational and which no-one in possession of their senses could have believed.

The court found that on the day before the execution of both wills Jean was suffering from insane delusions and that her mind was poisoned against Susan. These delusions and poisoning of her mind in the court’s view influenced the making of both wills. Jean had set them out in her oral and written instructions for the wills and expressed them to numerous witnesses.

Fraudulent calumny

The court was not satisfied that there had been fraudulent calumny exerted on Jean, there being no direct evidence of John encouraging his mother’s beliefs about Susan without regard to whether or not they were true. Ultimately it did not matter as neither will was admitted into probate, John having failed to prove, on the balance of probabilities that Jean was not suffering from delusions affecting her testamentary capacity. Both wills were held to be invalid and Jean was taken to have died intestate. Her estate therefore fell to be distributed in accordance with the intestacy rules.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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