The Court of Appeal on the Test for Testamentary Capacity – and what amounts to a Delusional Belief
The Court of Appeal decision in Clitheroe v Bond 2021.
The long established rule in the case of Banks v Goodfellow set out the test as to whether someone had capacity to make a Will. However, since the Mental Capacity Act 2005 “the MCA” came into being, debate has rumbled on as to whether or not the statutory provision replaces it.
Although the cases post-MCA of Simon v Byford and Wood v Smith had applied the Banks v Goodfellow test, this was considered again earlier this year in the Court of Appeal in Clitheroe v Bond [2021] EWHC 1102 (Ch) about which much has been written, and which appears to resolve the matter once and for all. In short, the Court of Appeal found that Banks v Goodfellows remains good law and has been reconfirmed as the correct test.
The case also raised interesting issues about the burden of proof, and fascinating question of what constitutes an insane delusion for the purposes of testamentary capacity. The case warrants a detailed look.
The estate in this case was relatively modest, worth approximately £350,000, mainly being the value of a bungalow. If the Wills in question were not valid, there would be an intestacy and the estate shared equally between the testator’s surviving children, the litigants, John and Susan. The share in question therefore was worth only about £125,000 to either of them at best. Given the cost of litigation, it was clear that the Court of Appeal was very concerned about the value of litigating the dispute.
Clitheroe v Bond – the background
While many cases concerning testamentary capacity relate to common disorders of old age such as memory loss, dementia and Alzheimer’s disease this case differed in that it concerned an affective grief disorder causing insane delusions.
Mrs Clitheroe died in 2017 leaving a 2013 Will which excluded her daughter Susan completely. In a 2010 Will she left Susan only a ring. Her son John was left the residuary estate in both Wills. Mrs Clitheroe had given instructions and left a letter in which she referred variously to Susan as “not being close” to her, and that she was a “shopaholic”, a “spendthrift” and would have spent it all.
This all arose however, out of a very sad background. In 1980 Mrs Clitheroe had divorced her husband as he had admitted sexually abusing Susan who was then a child. In 2009 the family lost Mrs Clitheroe’s other daughter, Debs, who had earlier suffered from skin cancer. In 2007 the cancer came back and was terminal, and naturally Mrs Clitheroe was extremely distraught. There was an upsetting incident shortly before Debs’ death however when Mrs Clitheroe was reluctant for Debs to be administered morphine whereas Susan wanted to ease Debs’ pain. There had been a further rift between Susan and her mother in 2010 connected with the occasion of John’s wedding. Mrs Clitheroe who suffered from some physical health problems had, after Debs death, “taken to her bed” where largely she stayed until her own death in 2017. Susan had tried on a number of occasions to reconcile with her but had been rebuffed. Mrs Clitheroe had formed a number of false and unjustified beliefs about Susan, including about her handling of money, but also that she had been stealing money and possessions from her, and that she had made up the sexual abuse allegation causing Mrs Clitheroe’s marriage to end (in fact the abuse was discovered due to her ex-husband himself disclosing it in correspondence).
Susan brought a claim disputing the validity of both wills, on the basis that due to the grief which Mrs Clitheroe experienced after Debs died she had suffered from insane delusions about Susan which affected her capacity when making both Wills.
The issues considered
The Court had to determine whether Mrs Clitheroe had testamentary capacity when she made her Wills. As there were serious concerns about her capacity, there being medical evidence for both Susan and John regarding Mrs Clitheroe’s mental disorder, the burden of proof lay with John, as the person seeking to prove that the deceased did have capacity to make both the 2010 and 2013 Wills. They had to consider whether the beliefs Mrs Clitheroe held about Susan constituted “insane delusions” which affected her capacity.
The Court was also asked to ascertain whether there had been any fraudulent calumny (undue influence) on the part of John to influence his Mother to exclude Susan from her Wills.
First Trial
The fraudulent calumny claim did not succeed.
On capacity, the Court found that none of the beliefs Mrs Clitheroe held about Susan were true and that these beliefs were irrational to the point of being delusional. John had not succeeded in reaching the burden of proof that his mother had capacity on the balance of probabilities, and as such both the 2010 and 2013 Wills were held invalid. John appealed to the Court of Appeal on the basis that various issues had been dealt with incorrectly by the Master.
Appeal
The fraudulent calumny claim was not appealed. On testamentary capacity, one of John’s arguments was that the Court, which had considered the test in Banks v Goodfellow as the relevant legal test had been wrong not to instead apply the test under the MCA. Further, that as this would have affected the burden of proof, it would have changed the way the evidence and the trial had been dealt with.
The significant difference in these tests for John’s purposes was the burden of proof. Because there had been real concerns about capacity the burden had reverted to John under the Banks v Goodfellow rule, whereas he would have had (he no doubt considered) an easier task under the MCA where the presumption is in favour of capacity has to be displaced by evidence first and would not have been upon him.
A summary guide to the differences in the two tests considered can be shown as follows:
| Test | Burden of Proof | |
|---|---|---|
| Banks v Goodfellow | The Testator should be able to; 1. Understand the nature of making a will and its effects 2. Understand the extent of the property to which they are disposing 3. Be able to comprehend and appreciate the claims to which they ought to give effect 4. Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will | If the will appears rational then there is a presumption of capacity by the court. The person contesting the will needs to raise a real doubt. If this is shown the burden for the trial switches to the person wishing to prove capacity. |
| MCA | The Testator should be able to ; 1. Understand the information relevant to the decision and any reasonably foreseeable consequences 2. Retain that information and communicate it 3. Use or weigh up that information as part of the process of making the decision | Presumed capacity unless established otherwise in evidence. |
The Court noted that the MCA was created for the purpose of defining the circumstances in which living persons are able to make decisions and therefore, in the retroactive nature of disputing testamentary capacity, it was not appropriate to use. Accordingly the Court of Appeal found that the Banks v Goodfellow test was the appropriate test.
This reflects that, in practice, the MCA test is predominately the test used for decision and time specific lifetime decisions. It is for example the test as to whether someone can make a Lasting Power of Attorney or make other specific decisions about their finances and affairs. The Banks v Goodfellow test is specifically tailored to whether a person could make a Will, whether they understood what they were doing, the effects of it, and whether their capacity is negated by a disorder of the mind.
The fact that John appealed on this ground undoubtedly flowed from the fact that under Banks v Goodfellow, once it was established that there were “real doubts” about his mother’s capacity, the burden of proof had transferred to him and he had a more difficult job in establishing that she had capacity (and he did not meet the burden).
Insane Delusions and False Beliefs
There had been two eminent experts’ reports before the Court at the first hearing from Consultant Geriatric Psychiatrists. Susan’s expert said that in his opinion Mrs Clitheroe was suffering from an affective disorder caused by grief at the loss of Debs which had caused her to suffer delusions about Susan. It was established that the beliefs Mrs Clitheroe had held about Susan were irrational and false.
The issue before the Court of Appeal was essentially whether or not (as John argued) that the first Court had been wrong in finding that these beliefs were therefore delusions which negated her capacity given that it had not been established that there had been attempts to reason Mrs Clitheroe out of these beliefs, which had failed. In short, they may not have been fixed beliefs that were accordingly delusions.
The judge in the trial had adopted a definition of “what is a delusion” that did not require there to have to been a consideration of whether there had been an attempt to reason with the holder of the false belief. John said that this was the wrong approach in his appeal.
The Court of Appeal did not agree with John and decided that whether or not a person was capable of being reasoned out of the false belief was deemed irrelevant to whether it in fact amounted to a delusional belief for the purpose of Banks v Goodfellow.
Summary
Banks v Goodfellow is not overridden by the more recent test in the MCA, the latter being applicable to lifetime decision making, not a post-death consideration of testamentary capacity. The Banks v Goodfellow test had been adopted in other cases post MCA but the Court of Appeal have now confirmed it.
This will no doubt bring welcome clarity to Will making practitioners, and parties to disputes about capacity alike. In disputes there is no scope to have the benefit of a less rigorous burden of proof by arguing that the MCA test applies where there are real concerns about capacity present.
A false belief for which there is no rational basis can be delusional and negate testamentary capacity even if there is no evidence of an attempt to reason the testator out of the false belief.
