Can a Broken Heart Remove a Will makers capacity to make a Will?

A decision of the England and Wales High Court (EWHC) this month, highlighted a case where Wills were overturned because of grief which left a family shattered.

This concerned a mother Jean Clitheroe (JC), who had made two Wills separated by three years apart but in each Will left almost her whole Estate to her son John. JC disinherited her daughter Susan Bond (SB) and gave the reason as being that she thought SB was a "shopaholic and would just fritter away [her legacy]". JC also believed SB had stolen from her and JC's other daughter Debra, who had died in 2009.

SB challenged the two Wills on the basis that her mother suffered a grief disorder following Debra's death and "insane delusions" which poisoned her mind against SB.

Evidence revealed that whilst JC took care to take legal advice, the solicitor who helped her to prepare her Wills, never met JC face-to-face and took instructions by telephone.

The Court rejected John's request to use the Mental Capacity Act [MCA] 2005 test and instead the traditional Banks v Goodfellow [1870] test to assess his late mother's testamentary capacity.

The MCA 2005 states that a person must be assumed to have capacity unless there is evidence to demonstrate that they lack capacity and is not to be treated as unable to make a decision merely because they will make an unwise decision.

The Court chose however the appropriate test to be applied remains set out in the 1870 case of Banks v Goodfellow where a person can have capacity only if "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 decision is subject to appeal, but the circumstances of the case can be recognised regularly when a person makes a Will shortly after a close bereavement.

Although the facts of this claim are unusual, the situation is familiar. Getting a Will written correctly will help to avoid these family anguishes. But when faced with a Will which raises doubts or concerns the best way forward is to get legal advice.

Contact Enoch Evans LLP on 01922 720333 (Walsall office) or 0121 3552336 (Sutton Coldfield office).