The Importance In The Detail Behind Drafting A Will

The recent decision in Re Jean Mary Clitheroe (Deceased) Clitheroe v Bond highlights the importance in the detail behind drafting a Will.

Jean Mary Clitheroe (Deceased) Clitheroe v Bond

Case background

Jean Mary Clitheroe (Deceased) died in 2017, leaving her estate to be administered in accordance with her last Will and Testament of 2013. The Will excluded the Deceased’s daughter and gave her reasons for doing so. The Deceased’s earlier Will, made in 2010, included her daughter to the extent that she would inherit a number of chattels. Both Wills left the residuary estate to the Deceased’s son.

The daughter challenged the Will on the basis that the Deceased lacked testamentary capacity at the time of making both Wills and also that the Deceased’s son’s fraudulent behaviour had caused the Deceased to make her Will’s as she did. The daughter requested that the estate was therefore administered in accordance with the rules of intestacy, which would allow her to inherit.

The Court reviewed the Will files, which included the Deceased’s specific instructions and also the Deceased’s medical records. Based on the Deceased’s instructions when preparing the Will, it was clear as to why the daughter was excluded. The medical record’s however shown that at the time, the Deceased was suffering from an affective disorder which was deemed to be caused by the early death of her other daughter in 2009.

The Deceased’s affective disorder had caused her to suffer with a number of insane delusions which formed the reasoning for the daughter’s exclusion from the Will. These delusions revolved around the daughter being responsible for the Deceased’s split with her husband; the daughter having stolen her jewellery, and the daughter being irresponsible with money.

The Court was required to look into these delusions and established that none of these were true. The daughter was in fact abused by her father which was why the Deceased divorced her husband. There was no evidence of theft and no evidence that the daughter was irresponsible with money.

The Court concluded that it was these insane delusions which led to the Deceased excluding her daughter from the Will. The Deceased’s Will was therefore declared invalid due to a lack of testamentary capacity. Although the Deceased was free to do as she wished with her estate, her decision was tainted by a mental disorder that poisoned her affections towards her daughter.

The Court considered the claim of possible fraudulent behaviour from the son, but held there was insufficient evidence to support this. The Court did not make any finding in respect of this claim.

Impact

The Wills were declared invalid because the Deceased lacked testamentary capacity. This demonstrates the importance of detailed attendance notes when preparing a Will. The Court reviewed all relevant factors, not only those relating to the Will, before concluding the Deceased did not have testamentary capacity.

The Court did consider the Deceased’s freedom to make her Will as she wanted and considered that the Deceased is able to form conclusions based on her own opinion. Individuals have the right to dispose of their estate as they wish (save for some statutory exceptions) and often people will cut out family members from their Will based on their own views. A common example of this is when a parent decides a child will not inherit on their death, simply because they do not like the person whom the child married.

The key difference in this case, which effectively voided the Deceased’s free will, was that the Deceased had only formed such opinions because of her affective disorder. The reasons for excluding the daughter were simply not true and showed a lack of testamentary capacity from the Deceased. If it was not for the Deceased’s affective disorder, it is unlikely she would have formed the same view.

When defending a Will it is important to take a holistic approach and consider all details. On the face of it, the Will left by the Deceased in this case would appear valid as her specific instructions provided reasoning for excluding the daughter. It was only when considering the Deceased’s affective disorder and evidence behind her reasoning, that it became clear the Deceased lacked capacity.