Mother’s delusions about ‘shopaholic’ daughter invalidated will: Roberta Harvey and Hannah Mantle write for Money Observer

Head of Contentious Trusts and Estates, Roberta Harvey, and CTE Senior Associate, Hannah Mantle’s article entitled ‘Mother’s delusions about ‘shopaholic’ daughter invalidated will’ was published in the Money Observer.

In the article, Roberta and Hannah highlight a recent case in a discussion about mental capacity concerns and inheritance disputes.

Their article refers to the recent case of Mrs Clitheroe and her daughter to consider the key factors necessary to create a will in the UK and prove testamentary capacity.

This article was first published in the Money Observer, now part of parent company, interactive investor.

Testamentary freedom could be considered the cornerstone of English succession law: an adult can leave their assets to almost anyone they wish. But what happens when someone can’t make a will, or that will is challenged?

A court recently decided a case where a daughter was disinherited by her mother. Jean Clitheroe’s last two wills left almost her entire estate to her son, disinheriting her surviving daughter, Susan Bond. Mrs Clitheroe gave detailed instructions about why she did not want to leave anything to her daughter, including claiming that she was a shopaholic, and alleging that she did not help her in her later years.

In order to make a will in this country, you must have testamentary capacity. Briefly, this consists of:

• Understanding you are making a will and the effect of it.
• Understanding the extent of your property.
• Appreciating who might expect to benefit from your assets.
• Being unaffected by any “disorder of the mind” that gives rise to insane delusions.

The first three elements of these requirements are often the basis for any challenge to a will – if a person no longer knows what a will is, what they would be giving away, or who they might be expected to benefit; they will not be able to make a valid will. More unusually, the final element was considered in the recent case.

If someone is suffering from a disorder of the mind leading to insane delusions that affect the terms of the will, they cannot make a valid will. Mrs Clitheroe had suffered from such severe grief after the death of her elder daughter, that she appeared to have become depressed and had taken to her bed for years, until her death.

During that time, she was irrational in her approach to her surviving daughter. In contrast to some of the accusations against her, Mrs Bond was found to have spent money in a similar fashion to her sister and mother; and to have continued to try to reconcile with her mother even though her attempts were rebuked.

The judge concluded that her mother had been so materially wrong about various factors and had reached unsubstantiated conclusions in relation to the same that she was suffering from insane delusions and her wills were invalid owing to lack of capacity. In May, the FT Adviser reported that Mrs Bond had been awarded half her mother’s £325,000 estate.

While the facts in this case are extreme (the deceased had not eaten or drunk anything for days before making one of her wills), it raises some important considerations.

First, it is important to make a will. Second, keep the will under review so that it reflects your family and assets as they evolve. Third, if a testator does not benefit everyone who might expect to benefit, the testator should consider how likely it is that those individuals might bring claims under the Inheritance (Provision for Family and Dependants) Act 1975, which allows claims even when a will is valid; and the testator should be wary of relying on friends or family members to help with the preparation of their will, as these individuals may be the subject of suspicion of undue influence after the testator has died.

Someone with a mental health condition can still make a will, as long as they meet the tests for testamentary capacity. We meet clients who struggle to understand the difference between a lifetime power of attorney and a will (which takes effect on death), some are no longer able to recall their assets, others may not think to benefit someone unless they see them regularly, or they may suffer from paranoia, which affects their decision-making.

Some people will understand once things are explained, but others will not. Someone in the early stages of dementia may still have capacity to make a will; and someone with a serious mental illness could still have lucid intervals.

Where a testator has mental health concerns, it is all the more important that the will be drafted with the involvement of a solicitor and/or a medical expert. These professionals can ensure that they take full instructions independently, and improve the likelihood of a will being upheld if challenged in future. The saving on legal fees after death when a will is challenged is likely to more than offset the cost of any additional help when making the will in the first place.

If someone does not have capacity to make a will, and the intestacy provisions or their existing will are not suitable for their circumstances, it is still possible to have a will made for them in this country. This requires an application to the Court of Protection for a Statutory Will. The application will be considered by the affected beneficiaries as well as by someone acting on the ‘testator’s’ behalf. A court will then consider whether a will be made and on what terms. Again, this can avoid post-death claims, potentially saving costs and family relationships.

With lockdown easing, a testator can meet a solicitor or the required two witnesses more easily. For many, there has not been a better time to make or review your will.

Roberta Harvey is a Partner, and Hannah Mantle, a Senior Associate, in the Contentious Trusts and Estates team.