An interesting case involving testamentary capacity was recently considered at an appeal Court. Guy Platon looks at the case and the impact the outcome could have for both will drafters and testators alike.

The Case – Clitheroe v Bond [2021] EWHC 1102 (Ch)

The case concerned two Wills drafted three years apart in 2010 and 2013 for a mother who subsequently passed away in 2017. She had two surviving children, her son John and daughter Susan, and under both wills her son took the majority of the estate, with her daughter specifically excluded, citing that she was a ‘shopaholic’ and would ‘fritter any inheritance away’.

Following their mother’s death, proceedings were issued by John to prove both Wills and Susan sought to defend the action.  The effect of her challenging both Wills was that, if successful, the estate would be distributed according to the laws of intestacy, which would have made better provision for Susan.

What was particularly unusual was that Susan was looking to prove that her mother did not have sufficient mental capacity to make both Wills, which were 3 years apart.  Often capacity can fluctuate over time and therefore this would have made the difficult task of successfully proving a lack of testamentary capacity even harder.

Susan argued that her mother had suffered a ‘grief disorder’ following the death of her eldest child’s in 2009, as well as a continuing affective disorder and insane delusions which had poisoned her mind against Susan. In addition she argued that the reasons for her exclusion were false.

Background – Testamentary Capacity

The test for capacity to make a will is set out in the case of Banks v Goodfellow [1870]; the person making the will needs to be able to comprehend;

  1. They are making a will,
  2. The extent of their estate,
  3. Those who might have a claim against their estate, and
  4. Not be affected by a delusion of the mind.

In this case, limb 4 was scrutinised.

Initial Outcome

At the first hearing, the Court found that John was an unreliable witness,  that Susan was not really at fault for her estrangement from her mother and also that some of her mother’s views about her were both irrational and delusional. Furthermore, it found that she had indeed suffered from insane delusions.

The Court accepted a medical expert’s opinion, which was that the mother had suffered from an affective grief disorder and that this had prompted her to suffer from various insane delusions which amounted to delusion of the mind under limb 4 of the Banks v Goodfellow test.

As lack of capacity was established neither will was proven and therefore her son’s claim failed.  In the absence of a further will predating the affective grief disorder, the intestacy rules would then apply to the mother’s estate.


An appeal was permitted and there was some interest in the result as it was possible that this decision could result in an increase in will challenges being brought on the grounds of a grief reaction.

On appeal, the ‘delusions’ limb of the test was examined and it was held that the delusion must be a false belief which is both irrational and fixed in nature.

The earlier decision was criticised in that that trial judge had not ‘taken full account of the need for the relevant beliefs to be ‘fixed’”.  The example given was the evidence about a suspected theft of some Swarovski crystals that the mother had accused her daughter of.  This was found not be an irrational ‘fixed’ belief as there was evidence that the mother had wondered whether they had been stolen and had also thought they might have still been in her loft.

A ‘fixed belief’ was defined as “if there is irrefutable evidence known to the individual that a particular belief is unfounded, but they still continue maintain it”.

The appeal judge did, however, approve the trial judge’s conclusion that there was a causal link between the illness and death of the eldest daughter and the mother’s insane delusions.

What does this Mean?

It may not be apparent to will writers or family members if a testator is suffering from such a condition at the point a will is created.

As such, it demonstrates the need to obtain a full background on the will maker and to obtain medical evidence as to capacity where there are any doubts or concerns.

To avoid situations such as this, it is important to have your will drafted by a professional who would be able to identify any potential concerns with capacity and ensure sufficient checks are carried out at the point the will is created to negate any future doubt.  Our team of experts will be happy to assist you and to hold a copy of your will for safekeeping.

Furthermore, if you are in dispute over the validity of a will, we can help. Guy specialises in disputes arising from inheritance and probate, including testamentary capacity and the interpretation of wills.

He can be contacted directly at, or by telephone at 01254 67 22 22. Alternatively you can talk to us via live chat or complete our online enquiry form and one of our experts will contact you.

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