Can grief be enough to invalidate a will?

17 September 2021 | Applicable law: England and Wales

This review of the recent decision in Clitheroe v Bond will be useful for estate and inheritance dispute lawyers, professionals working with individuals who lack capacity and those involved in probate disputes with issues over capacity.

The extent of the deceased’s cognitive impairment is central to most testamentary capacity cases and often results from dementia. In Clitheroe v Bond medical experts agreed there was no evidence of cognitive impairment. Instead, a mother’s grief over her daughter’s death was so severe that it led to delusions (irrational and fixed false beliefs) which poisoned her mind, leading her to cut her surviving daughter out of her Will. That led in turn to a bitter probate dispute between siblings over their mother’s estate.

The judgment also provides a 21st century update to the 19th century doctrine of insane delusions.


Jean married Keith Clitheroe in 1961. They had three children – Susan, John and Debra (known as Debs). Jean divorced Keith in around 1980 after finding out that he had been sexually abusing Susan.

Debs sadly died from cancer in 2009 aged 46 years old. Jean was deeply affected by Debs’ illness and death, leading to the deterioration of her relationship with Susan and ultimately to making a Will in 2013 which disinherited Susan and left all to John.

Jean provided handwritten instructions to her solicitor for the Will, which included apparently cogent and detailed reasons for excluding Susan. Perhaps the most significant of Jean’s allegations was that Susan had falsely accused her father of sexual abuse and purposely broken up her parents’ marriage. Other reasons included lack of contact, that Susan was a shopaholic, that if it had been left to Susan to care for Jean she would have ‘starved to death’, and an allegation that Susan and others ransacked Debs’ bungalow after her death.

Jean died in December 2013 leaving an estate worth around £400,000.

The dispute

Susan challenged the Will, claiming that Jean lacked testamentary capacity. She argued that Jean suffered from a complex grief reaction after Debs died amounting to an ‘affective disorder’ (a term which is used in the Banks v Goodfellow test for testamentary capacity), which manifested in severe depression and insane delusions about Susan.

Jean was described as a strong character and stubborn. The experts agreed that there was nothing in the medical records suggesting that she had a cognitive impairment. Jean scored highly on Mini Mental State Examinations and every clinician who treated her found her to have had capacity (although she never had a full psychiatric assessment).

The Trial Judge considered whether each of the reasons Jean gave for making her Will were actually true.

John’s case was that the allegation that Susan had made up the sexual abuse was true. However, documentary evidence showed that, in around 1980, Jean had discovered letters written by Keith hidden under Susan’s bed in which he set out details of the abuse. Jean had taken the letters to her solicitor and used them as the basis for her divorce. She did not go to the police as she was concerned about the potential implications from publicity.

However, from around 2009 (just before Debs died) up until her death, Jean maintained that Susan had lied about the abuse and denied that there had been any letters. The Trial Judge found this to have been irrational to the point of being delusional.

The Trial Judge also decided that the allegations that Susan was a spendthrift/shopaholic, she had stolen certain items and ransacked Debs’ property were untrue and that these allegations too were irrational to the point of delusion.

Ultimately the Trial Judge decided that Jean had been suffering from a complex grief reaction and persisting depression that were so severe that they amounted to an affective disorder which included impaired her testamentary capacity, meaning that the Will was invalid and the estate would be divided equally between Susan and John under the intestacy rules.

The Appeal

John appealed based on two specific legal points; that the incorrect test for testamentary capacity was used, and that the test for insane delusions had been misapplied.

Testamentary capacity

John claimed that the Trial Judge should have applied the test for capacity set out in the Mental Capacity Act 2005 (the ‘MCA 2005’) rather than the 19th century Banks v Goodfellow test.

The Banks v Goodfellow test for testamentary capacity requires that a testator must have been able to:

  • understand the nature of the Will and its effects;
  • understand the extent of the property of which he/she is disposing; and
  • comprehend and appreciate the claims to which he ought to give effect.
  • In addition it must also be shown ‘that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made’.

The test for capacity in the MCA 2005 is

3. Inability to make decisions

(1) …a person is unable to make a decision for himself if he is unable–

( a ) to understand the information relevant to the decision,
( b ) to retain that information,
( c ) to use or weigh that information as part of the process of making the decision, or
( d ) to communicate his decision (whether by talking, using sign language or any other means).

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of–

(a) deciding one way or another, or
(b) failing to make the decision.’

The requirements of the MCA 2005 test of capacity, whether (and if so to what extent) they differ from the Banks v Goodfellow test, and whether they were met in this case had not featured at the Trial. Because John’s legal team had not challenged use of the latter test during the Trial, the Appeal Judge concluded that it would not be right to let him do so on appeal. She did, however, set out the reasons why this ground of appeal would have failed in any event.

A number of cases have considered whether the MCA 2005 has affected the test for testamentary capacity. Those cases establish that the MCA 2005 governs the capacity of a living person to make decisions, whereas Banks v Goodfellow is a retrospective test to be applied after the death of the testator. The Appeal Judge agreed. She noted that the MCA 2005’s stated purposes do not include determining questions of testamentary capacity.

Insane delusions

John also argued that the Trial Judge had misapplied the test for insane delusions. He contended that a key part of the test for insane delusions is the need to demonstrate that it would have been impossible to reason the relevant individual out of the belief
The Appeal Judge held that an insane delusion must be more than a mistaken belief which could be corrected; it is a false belief which is both irrational and fixed. It is not, however, essential to demonstrate that it would have been impossible to reason the person out of that belief.

The Appeal Judge noted that requiring such evidence could create difficulties in a testamentary context, as it would need to be shown that the deceased was challenged about their belief in his or her lifetime.

The Appeal Judge concluded that the correct approach to demonstrate a delusion is to conduct a holistic assessment of all evidence. This holistic assessment should take account of the nature of the belief, the circumstances in which it arose, whether there was any evidential basis for it, whether it was formed in the face of evidence to the contrary, the period of time over which it was held and whether it was the subject of any challenge.

What next?

The case has not yet concluded but rather than set a date for a subsequent hearing, the case was adjourned for three months to give the parties ‘an opportunity to reflect on their positions and determine whether agreement can be reached without the expense of any further hearing’.  We do not know whether the parties mediated or whether any offers to settle were made but the Court was clearly concerned that the costs of the litigation were disproportionate to the sums at stake.  We understand that the parties are now pursuing alternative dispute resolution.


This is the most detailed analysis so far on how an affective disorder such as a complex grief reaction can impair testamentary capacity. The key takeaway is that it is possible for someone to have suffered from an affective disorder even where there is no evidence in their medical records of cognitive impairment.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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