“If left to her I would have starved to death. Deb would have been so upset and disgusted about the way she has treated me.”
“A man, moved by capricious, frivolous, mean, or even bad motives, may disinherit wholly or partially his children, and leave his property to strangers. He may take an unduly harsh view of the character and conduct of his children, but there is a limit beyond which it will cease to be a question of harsh unreasonable judgment, and then the repulsion which a parent exhibits to his child must be held from some mental defect.”
“We agree that there is nothing in the medical records which we have seen that suggests that the deceased had a cognitive impairment at any material stage, despite her considerable health problems. We agree that neither dementia nor delirium is relevant in the present case.”
“In the present case there is no reason to think that the deceased’s understanding of the nature of a will or the extent of her estate was compromised. There was no cognitive impairment.”
“In my opinion the Deceased was not showing any evidence of dementia at the material time. She scored repeatedly highly on both the AMT [Abbreviated Mental Test] and MMSE [ Mini Mental State Examination]. Dementia is not an issue in this case.”
“On the face of it the Deceased appears not to have been vulnerable to the influence of others. Indeed, in most cases the opposite was probably the case because of her tendency to have fixed ideas. However, in my opinion she was potentially vulnerable to influence when circumstances fitted in with her own fixed ideas. For instance, if she developed a fixed idea about Susan, I consider that she would have been vulnerable to believing any further denigration of her younger daughter, true or false.”
“Whether the Deceased suffered from a complex grief reaction or any other affective disorder as a result of Debra’s death or otherwise (the burden being on the Claimant to demonstrate that she did not);”
“In conclusion, I think the medical records suggest that it is more likely than not that the deceased was suffering from an adjustment disorder which had many causes, one of which was the death of her daughter, but another very important one was chronic, unrelieved pain. It is possible that she had a clinical depressive disorder, but there is not enough infromation in the medical records to be confident of this.” 112.And then at 9.1.5: “On a straightforward reading of this evidence, it appears to me that these matters provide a sufficient explanation of why she should have excluded Susan from her wills. She weighed up the claims of Susan and John and made her decision, as any testator of sound mind is entitled to do. If the deceased had no good reason to disbelieve those things about Susan, then she was entitled to exclude her from her will.”
“In my opinion, the Deceased did show evidence of a complex grief reaction around the time of Debra’s death. I use the word “around” advisedly because it probably started before her daughter died, once she realised death was inevitable….If the Court accepts Susan’s account, the Deceased’s behaviour in not wanting palliative care for Debra was part of the grief reaction.” 114.And at 48: “In my opinion, the deceased’s personality also has to be considered here. She appears to have been a woman of rather fixed ideas that were not always evidence-based. She attended doctors very frequently but would have her own ideas about what was wrong and would often decline to accept medical advice. She tended to displace her obesity onto unrealistic causes”
“In my opinion, at the time she made both the 2010 and 2013 wills the Deceased was suffering from a disorder of mind within the meaning of the Banks v Goodfellow judgment, namely an affective disorder. I choose to use the latter term because it encompasses the complex grief reaction and the persisting depression. As I have already stated, bereavement reactions after loss of a loved one are entirely normal in most cases. In some however they can be overwhelming. In the case of Key v Key[2010] EWHC 408 (Ch) in which I gave evidence, the Court accepted that the testator experienced an affective disorder in the form of an overwhelming bereavement reaction that impaired his testamentary capacity. Briggs J as he then was stated in the judgment: [paras 95 and 96 then quoted see [140] and [141] below]”
“In my opinion, if she did lack testamentary capacity, it was on the grounds of “insane delusion”
“Delusional beliefs in affective disorders are most commonly delusions of guilt but in older patients guilt is often “projected” onto other persons. A common example is for a patient to say his or her spouse caused their marriage to hit the rocks. On recovery the patient can hardly believe that this was said. The Deceased had a tendency to project her problems e.g. her obesity and its consequences on her legs and mobility away from herself. In my opinion, it is probable that she projected her guilt at outliving her elder daughter onto Susan. Her allegations against Susan, if found by the Court to be false, would, to paraphrase the Banks v Goodfellow judgment, have been ideas that poisoned her affections, perverted her sense of right and prevented the exercise of her natural faculties.” 118.And in summary at para 72: “The Deceased suffered from a complex grief reaction with persisting affective manifestations at the time she made two contentious wills. If the beliefs about her daughter Susan are accepted as false by the Court, they were consistent with depressive delusions that caused her to exclude Susan from her bounty. She was potentially vulnerable to the influence of others, if those others reinforced her own fixed ideas.”
“In psychiatry, a delusion is a fixed belief which is out of keeping with the person’s social, cultural, educational or religious background. The word “fixed” in the definition means that the person holds onto the belief in the face of strong evidence or argument that it is false. It is not sufficient simply to show that the belief is false; many of us believe things which are in fact false, but it is not until the holder of those beliefs continues to hold them in the face of normally persuasive evidence of their falsity that the beliefs could be called delusional.”
“If the deceased had reasonable grounds for believing those claims were true, then in my view they were not delusional. They could only be said to be delusional if the deceased had no good reason for believing them, and if she continued to hold them after efforts had been made to persuade her they were false.”
“I have not seen evidence to suggest that anyone tried to persuade Mrs Clitheroe that her beliefs about Susan were illfounded, so that in my view it is difficult to demonstrate that they were fixed beliefs.” 123.And in conclusion: “For these reasons I continue to think it unlikely that the deceased was suffering from an affective disorder, nor do I think it likely that the beliefs she expressed about Susan could properly be described as delusional. She was a strong minded, opinionated person who had poor mobility and was in a great deal of pain for many years as a result of her various medical conditions, and she was understandably unhappy with her situation. She also understandably felt the loss of her daughter Debra very strongly. None of those things, in my opinion, is likely to have undermined her testamentary capacity either in 2010 or 2013 when she executed her two wills.”
“vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is “fraudulent calumny”
“The more improbable the event, the stronger the evidence that it did occur before, on the balance of probability, its occurrence will be established.”
“The burden of proof rests on the person alleging undue influence or fraud. Although the standard of proof is the civil standard, the balance of probabilities, and undue influence can be found by the court drawing inferences from all the circumstances, the cogency and strength of the evidence required to prove fraud is heightened by the nature and seriousness of the allegation.”
“It is essential … that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, 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 his mind had been sound, would not have been made...Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence—in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.”
“Without in any way detracting from the continuing authority of Banks v Goodfellow, it must be recognised that psychiatric medicine has come a long way since 1870 in recognising an ever widening range of circumstances now regarded as sufficient at least to give rise to a risk of mental disorder, sufficient to deprive a patient of the power of rational decisionmaking, quite distinctly from old age and infirmity. The mental shock of witnessing an injury to a loved one is an example recognised by the law, and the affective disorder which may be caused by bereavement is an example recognised by psychiatrists, as both Dr Hughes and Professor Jacoby acknowledged. The latter described the symptomatic effect of bereavement as capable of being almost identical to that associated with severe depression. Accordingly, although neither I nor counsel has found any reported case dealing with the effect of bereavement on testamentary capacity, the Banks v Goodfellow test must be applied so as to accommodate this, among other factors capable of impairing testamentary capacity, in a way in which, perhaps, the court would have found difficult to recognise in the 19th century.” 141.And at [96]: “Banks v Goodfellow was itself mainly a case about alleged insane delusions. Many of the cases which have followed it are about cognitive impairment brought on by old age and dementia. The test which has emerged is primarily about the mental capacity to understand or comprehend. The evidence of the experts in the present case shows, as I shall later describe, that affective disorder such as depression, including that caused by bereavement, is more likely to affect powers of decisionmaking than comprehension. A person in that condition may have the capacity to understand what his property is, and even who his relatives and dependants are, without having the mental energy to make any decisions of his own about whom to benefit.”
“A grief or bereavement reaction may be indistinguishable from a depressive episode. Most grief reactions are entirely normal emotional responses to a bereavement, and resolve within about six months. If they continue for longer, psychiatrists consider them pathological. A grief reaction was held to have impaired a testator’s capacity in Key v Key. Although it was not pathological, the court accepted expert evidence that it was an affective disorder, and thus that the testator had not had sufficient testamentary capacity to execute the will.”
“It is unfortunately not a thing unknown that parents—and in justice to women I am bound to say it is more frequently the case with fathers than mothers, - that they take unduly harsh views of the characters of their children, sons especially. That is not unknown. But there is a limit beyond which one feels that it ceases to be a question of harsh unreasonable judgment of character, and that the repulsion which a parent exhibits towards one or more of his children must proceed from some mental defect in himself. It is so contrary to the whole current of human nature that a man should not only from a harsh judgment of his children, but that he should put that into practice so as to do them injury or deprive them of advantages which most men desire above all things to confer upon their children. I say there is a point at which such repulsion and aversion are themselves evidence of unsoundness of mind. Fortunately the case is rare. It is almost unexampled that a delusion consisting solely of aversion to children is manifested without other signs which may be relied on to assist one in forming an opinion on that point.”
“The test in Boughton & Marston is applicable when there is no supportive medical evidence of the kind that there is in this case explaining how it is that the cognitive faculties of a testator can be impaired in consequence of a recognised medical condition.”
“To my mind the evidence plainly points to the fact that Mary's motive in making the Will was to cut out her children rather than to benefit NOS. This emerges clearly from the file notes. There was no rational reason for her to cut out all her children. Plainly therefore her affections to her children were poisoned. This, too, emerges from the file notes. I have set out the allegations above. In addition there are references to the children "not deserving her money". As set above the allegations she made about her children which she gave as a reason for cutting them out were untrue but were believed by Mary to be true. They were, in my view delusions.”
“Unless your minds are satisfied that there is no reasonable connection between the delusion and the bequests in the wills, those who propound the wills have not discharged the burdens cast upon them, and your verdict must be against them.”