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Testamentary capacity to make a will: a cautionary tale for practitioners

A will has been successfully challenged due to the testatrix having delusional beliefs about her daughter (Clitheroe v Bond [2020]).

A will has been successfully challenged due to the testatrix having delusional beliefs about her daughter (Clitheroe v Bond [2020]).

What was the case about?

Jean Clitheroe passed away in 2017 aged 76 leaving an estate worth £325,000. She had excluded her daughter, Susan, from her will. Mrs Clitheroe had left a letter of wishes detailing her reasons for excluding Susan, stating that she was a “shopaholic and would just fritter it away”. The solicitor who prepared Mrs Clitheroe’s will prepared a note of conversations with his client, in which Mrs Clitheroe stated that her daughter was a “spendthrift” and she did not wish for her to inherit.

Following her mother’s death, Susan sought to challenge the will on the grounds that Mrs Clitheroe lacked mental capacity.  She alleged that her mother suffered with ‘insane delusions’ which affected her will to the extent that she lacked the mental capacity to make a valid Will (known as ‘testamentary capacity’).   

Test for capacity

The legal test for testamentary capacity is set out in the seminal case of Banks v Goodfellow [1870].  One element of the test is that the testator must not suffer with any ‘insane delusions’ or ‘disorder of the mind’ which affects the dispositions they purport to make under their will. On the facts of Banks v Goodfellow itself, the deceased had a strong aversion to a local man whom the deceased believed to be persecuting him. There was evidence that those beliefs were due to the deceased suffering with delusions. Nevertheless, his delusional beliefs had no bearing on the content of his will, and so he was deemed to have sufficient testamentary capacity.  

Outcome of this case

However, in Mrs Clitheroe’s case, Susan alleged that her mother was suffering with a complex grief reaction due to the death of one of her other children. This was followed by depression and caused Mrs Clitheroe to experience insane delusions concerning Susan’s spending habits.

Medical evidence called to assist on the issue of Mrs Clitheroe’s mental capacity was divided. The expert called by the executor (seeking to uphold the will) said it was unlikely Mrs Clitheroe suffered with any delusions as a result of her condition. On the other hand, the medical expert called by Susan (seeking to challenge the will) suggested that Mrs Clitheroe was suffering with a mental disorder to such an extent that her mental capacity to make a will was compromised.

The High Court held that Mrs Clitheroe was suffering with delusional beliefs concerning Susan which directly affected the content of her will. Therefore, Mrs Clitheroe did not have testamentary capacity at the time she made a will in 2010, neither did she have capacity at the time she amended her will in 2013. As such, both wills were invalid and Mrs Clitheroe’s estate was administered under the intestacy rules.

Guidance for practitioners

The case is yet another reminder of the complexities of mental capacity assessments, particularly in cases where a client may appear, on the face of it, to have rational reasons for excluding a potential beneficiary. Practitioners ought to discuss with clients their family background and the reasons for wanting to exclude individuals. That way, practitioners can assess whether those reasons appear rational or if there may be a concern about the testator suffering with delusions. It remains best practice to always obtain a medical opinion when making a will for a person whose mental capacity is in doubt or liable to challenge.

If you have any questions or would like to know more please contact Lorraine Wilson, Solicitor on 0161 214 0532 or

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