Can Delusional Reasons for Making a Will Kill It
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, explore whether delusional reasons for making a Will can kill it
What we are considering here is whether a delusional belief, perhaps against a child and leading to the disinheritance of that child, can render the Will invalid in law
This is a very common circumstance – a child (usually one of a number) of the deceased is excluded for seemingly spurious or inconsequential reasons. The most obvious is that he/she didn’t pay mum or dad sufficient attention. This is not we need to say, the situation we are referring to here in relation to a delusional belief (which is often referred to as an “insane delusion”) and which can lead to the Will being successfully contested or disputed and thereby overturned. We need to be clear from the outset that a delusional belief of the type we are referring to is going to be relatively uncommon and will usually be “submerged” by other grounds for contesting or disputing the Will, which are usually associated with diminished mental capacity caused by Alzheimer’s Disease or dementia. For more information on capacity issues in relation to Will validity claims, the reader may find it helpful to consider our earlier blog at:
Accordingly, it is highly unlikely that mum or dad’s flimsy excuse to disinherit a child based on mischievous if not wholly unsupportable claims of wrongdoing is going to amount to a delusional belief in law of sufficient severity to over turn the Will. It seems to be the case that crass as it may seem, some parents simply do not like some or all of their children and will seek to disinherit them and provide an excuse to an outsider (such as a Solicitor) because they are asked for one and to provide a foundation that is more civilised and reasonable. This does not, in my view, make that reason the foundation of a claim the belief was delusional. The reason given was probably only provided to justify the exclusion and avoid the truth behind the decision which was much too petty for outsiders to know.
One must not then fall pray to making decisions about delusional grounds for disinheritance which ignore the above.
So what then is a delusional belief or “insane delusion” of sufficient strength to overturn the legal validity of a Will?
This was considered very recently in Clitheroe v Bond (2021) EWHC 1102 (Ch) (Falk J):
https://www.bailii.org/ew/cases/EWHC/Ch/2021/1102.html
This was a claim on appeal from the first instance decision of Deputy Master Linwood, whose Judgment was broadly upheld. He found that the Wills of the late testator in this case were invalid on the grounds of incapacity – in particular because the testator was suffering from an insane delusion or delusions about the Claimant (her daughter) sufficient to establish she did not have legal testamentary capacity when the Wills were made. This was notwithstanding there was nothing in the records to suggest any cognitive impairment. What there was however was evidence in her medical records revealing she was likely to have been suffering from a complex grief reaction and persisting depression which had impaired her testamentary capacity.
It appears to be the case that for the delusional belief to be sufficient to impugn the legal validity of the Will:
• It must be false but fixed in character (permanent) and out of keeping with the testator’s background
• Of morbid origin (associated with a mental illness notwithstanding it was undiagnosed when the Will was made)
• It must influence the Will (determine the disinheritance)
All these are considered by Falk J at paragraphs 102 to 107:
- I agree that, for a delusion to exist, the relevant false belief must not be a simple mistake which could be corrected. It must be irrational and fixed in nature. I also agree that it should be out of keeping with the person’s background. Where the belief is as obviously extreme and irrational as the kind in question in Smith v Tebbitt it is unlikely to be difficult to demonstrate that it amounts to a delusion. Where a belief does not fall into that category, one way of demonstrating that it amounts to a delusion – and indeed the obvious way in many cases – is to show by evidence that the individual could not in fact be reasoned out of it. It is not surprising that the clinical test focuses on this for that reason, and also because it is a matter which can be tested with a live patient. However, as Smith v Tebbitt shows it is not an essential ingredient of the test. Rather, it is a means of demonstrating evidentially that the test is satisfied. Another way, which is relevant in this case, would be if it could be shown that the belief was formed and maintained in the face of clear evidence to the contrary of which the individual was plainly aware (the “proof” referred to in the Haggard report of Dew v Clark), such that there is no sensible basis on which to conclude that the individual was simply mistaken or had
forgotten the true position, as opposed to being delusional. A further alternative would be to demonstrate that the individual had no basis on which they could rationally have formed and maintained the mistaken belief. The key question in each case is whether the relevant irrational belief is fixed. - As a matter of principle, it seems to me that the correct focus must be on the individual’s state of mind. What is required to determine that the relevant belief has the requisite fixed nature must depend on the particular factual circumstances (which will include the nature of the belief and the circumstances in which it arose and was maintained), rather than itself being part of the test. A test based on proving a hypothetical proposition, namely that if an attempt was made to reason the individual out of the belief it would not succeed, seems to me to be not only an inherently difficult concept in the absence of an actual attempt being made, but also one that does not take account of the potential range of different factual circumstances that may exist. For example, if there is irrefutable evidence known to the individual that a particular belief is unfounded, but they still continue maintain it, I do not follow why further mental gymnastics should necessarily be required to prove a further hypothetical proposition. That risks, at the least, adding additional, and in my view unnecessary, complexity. It also gives rise to particular difficulties in a testamentary context, where the challenge of proving a hypothetical might mean that, in practice, issues of capacity could turn on the happenstance of whether the deceased was in fact challenged about a belief during his or her lifetime.
- What I consider to be the correct approach would allow a holistic assessment of all the evidence. This would take account of the nature of the belief, the circumstances in which it arose and whether there was an evidential basis for it, whether it was formed in the face of evidence to the contrary, the period of time for which it was held and whether it was the subject of any challenge.
- An example of the test being applied in the way that I have described is Walters v Smee [2008] EWHC 2029 (Ch), where HHJ Purle QC concluded that no rational person could possibly have believed certain things believed by the testatrix, given the knowledge she had or must have had and the events she experienced (see paragraphs [124] and [125]).
- One question that arises is the precise relevance of the medical definition of “delusion” to the legal test of testamentary capacity. This was not the subject of specific submissions so I limit myself to a few observations. First, the Banks test of incapacity must not be understood as being limited to incapacity caused or manifested by a “delusion” as now clinically understood. A far broader category of disorders may result in incapacity, and the 19th century cases need to be considered with that in mind. Secondly, the list of disorders is not necessarily closed. Key v Key provides an example of testamentary capacity being found to be lacking as a result of the effect of bereavement, both experts in that case having accepted that bereavement could cause an affective disorder (see paragraph [95] of that decision). Thirdly, Professor Jacoby’s evidence was that a delusion requires a disorder of the mind, that is some form of mental illness (see [94] above). Dr Series confirmed at the trial that he largely agreed with Professor Jacoby’s evidence on this issue, and he also specifically confirmed that there are “delusional disorders for which the evidence of mental disorder is only the delusion”. In addition he stated that if Jean had a delusion then it was “very possible that that was related to an affective disorder” (see [93] above).
- Put another way, as I understand the expert evidence a delusion (in the clinical sense) is not itself a medical disorder, although it may be evidence of one. In this case, and as discussed further below, the Deputy Master’s conclusion was that Jean was suffering from an affective disorder.
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