Inheritance Wars: The Harry Potter Books, the Disinherited Daughter and the £350,000 Estate

Disappointed family members frequently say that a deceased relative could not possibly have intended what appears in their will.

Usually, that is not enough.

English law allows people considerable freedom to leave their property as they choose — including making decisions which their children regard as unfair, eccentric or deeply hurtful.

But sometimes the beliefs which led to a testamentary decision raise a more fundamental question: did the person making the will have testamentary capacity at all?

Clitheroe v Bond [2020] EWHC 1185 (Ch), [2021] EWHC 1102 (Ch) provides a striking example.

The dispute concerned Jean Clitheroe and her surviving children, John and Susan. Jean made two wills which substantially favoured John and excluded Susan.

Among the reasons Jean gave were beliefs that Susan was a spendthrift, had behaved badly towards the family and had stolen various possessions. The alleged missing items included jewellery, a gold watch, cameras, Swarovski crystals and, rather memorably, Harry Potter books.

Susan denied the allegations.

After Jean's death, the siblings ended up in a bitter probate dispute over an estate worth approximately £350,000 to £400,000.

The court ultimately refused to admit either will to probate. Jean was treated as having died intestate. The consequence was that John and Susan would share the estate equally.

A family already affected by tragedy

Jean had three adult children: Debra, Susan and John.

In December 2009, Debra died from cancer at the age of 46. The evidence was that Jean was profoundly affected by her daughter's death. She subsequently spent much of her remaining life bedridden.

Against that background Jean made a will in 2010 and another in 2013. Both substantially preferred John. Susan received little under the 2010 will and was effectively excluded under the later arrangements.

Jean described Susan as a "shopaholic" and a spendthrift and expressed the view that she would simply spend any inheritance she received.

But the dispute went considerably further than disagreement about Susan's spending habits.

The allegations against Susan

Jean came to hold a series of highly adverse beliefs about her daughter. These included allegations that Susan had taken various possessions. The disputed items were said to include:

• a gold watch;
• cameras;
• a digital projector;
• a computer;
• DVDs, CDs and books;
• Swarovski crystal said to have substantial value;
• items belonging to Debra; and
• a collection of Harry Potter books.

There were also serious allegations concerning events surrounding Debra's death and Susan's relationship with other members of the family.

Susan denied the allegations.

The legal significance was not simply whether Jean had been unfair to her daughter. The question became whether Jean's beliefs were the product of a disorder of the mind and whether they had influenced the testamentary dispositions.

Testamentary capacity

The traditional legal test comes from the nineteenth-century case of Banks v Goodfellow (1870). In broad terms, a person making a will must:

• understand the nature and effect of making a will;
• understand the extent of the property being disposed of;
• appreciate the claims of those who might reasonably expect to benefit; and
• not be affected by a disorder or delusion which poisons the affections, perverts the sense of right or influences the testamentary decision.

That final element became central in Clitheroe.

A person does not lack testamentary capacity merely because they hold views which another person considers unreasonable. People with capacity are entitled to make bad decisions. They are entitled to dislike relatives. They are entitled to disinherit children. They can even make decisions which appear eccentric.

The difficulty arises where a fixed false belief results from a disorder of the mind and materially influences the will.

The first trial

At first instance, Deputy Master Linwood heard extensive evidence concerning Jean's mental state and her beliefs about Susan. The court considered competing medical expert evidence.

The Deputy Master concluded that Jean had suffered from an affective disorder following Debra's death and that some of her beliefs about Susan amounted to insane delusions for the purpose of the Banks v Goodfellow test. Those beliefs had influenced the making of the wills.

The court therefore refused to admit the 2010 and 2013 wills to probate. Jean was treated as dying intestate.

That changed the financial outcome dramatically. Instead of John receiving the residue under the wills, John and Susan would share the estate equally.

Banks v Goodfellow or the Mental Capacity Act?

The dispute then produced an important appeal. One question was whether the Victorian Banks v Goodfellow test should continue to govern testamentary capacity or whether it had effectively been replaced by the statutory framework in the Mental Capacity Act 2005.

Mrs Justice Falk concluded that Banks v Goodfellow remained the applicable test.

The decision is therefore important well beyond the particular family dispute. The law still distinguishes between the common-law test used when assessing testamentary capacity and the statutory framework used for many other capacity decisions during a person's lifetime.

When does an irrational belief become a delusion?

The appeal also required the court to consider what legally constitutes a delusion. That is not always straightforward.

Families can hold deeply entrenched views about each other. Parents and children sometimes genuinely believe things which another family member regards as completely wrong. The law cannot simply treat every unreasonable belief as evidence of incapacity.

The court therefore examines the evidence as a whole. Relevant considerations may include:

• the nature of the belief;
• how it arose;
• whether there was any evidential basis for it;
• whether it persisted despite evidence to the contrary;
• how long it was held;
• whether anybody challenged it; and
• whether it actually influenced the will.

In Clitheroe, the court ultimately concluded that the relevant beliefs were sufficiently connected with Jean's disorder and her decision to exclude Susan. The wills were not admitted to probate.

A £350,000 estate

There is another feature of the case which is especially important from a mediation perspective.

This was not a dispute over a £50 million fortune. The estate was said to be worth around £350,000–£400,000. The genuine financial difference between the parties was less than the full value of the estate.

Mrs Justice Falk expressly expressed concern about the costs of the litigation compared with the amount actually in dispute. She was also concerned about the broader impact which the dispute was having on the family.

Those concerns did not disappear as the litigation continued.

The court encouraged resolution

At one stage the appeal court deliberately gave the parties an opportunity to resolve the outstanding issues. Mediation was attempted. Unfortunately, it did not produce a settlement.

That is an important point. Mediation is not guaranteed to work. Nor should it be presented as though every probate dispute could be settled if only the parties were sufficiently reasonable. Sometimes relationships have deteriorated too far. Sometimes a legal determination is genuinely required. Sometimes the gap between the parties is simply too great.

But an unsuccessful mediation does not undermine the reasons for attempting it. Where the value of the estate is modest relative to the potential costs of trial and appeal, attempting settlement may be entirely rational even if agreement ultimately proves impossible.

The economics can change during litigation

Inheritance disputes often begin with apparently straightforward arithmetic. Suppose one sibling believes that they should receive another £150,000 from the estate. At the beginning, litigation may appear economically sensible.

But then come:

• pleadings;
• disclosure;
• witness statements;
• medical records;
• expert psychiatric evidence;
• conferences;
• a multi-day trial;
• an appeal;
• further hearings; and
• costs arguments.

The financial equation changes.

At some point the parties may find that they are no longer merely fighting over the estate. They are fighting about the consequences of the litigation itself.

That risk becomes particularly acute where the estate is worth only a few hundred thousand pounds.

Capacity disputes are especially difficult

A testamentary-capacity dispute has another feature which makes settlement challenging. The person at the centre of the case cannot attend the mediation.

Jean could not explain: "This is why I distrusted Susan." Nor could she answer questions about whether she really believed particular things, why she believed them or whether those beliefs influenced her decision.

Instead, the parties were forced to reconstruct her mental state from:

• medical evidence;
• solicitor files;
• documents;
• previous wills;
• family recollections;
• expert evidence; and
• the circumstances surrounding the preparation of the wills.

That uncertainty creates litigation risk for both sides.

Could mediation have helped?

In Clitheroe itself, mediation was attempted and did not resolve the case. That makes it an especially useful example because it allows a realistic discussion of what mediation can — and cannot — achieve.

The purpose of mediation is not to guarantee settlement. It provides an opportunity to test whether settlement is possible before the parties incur still further cost and risk.

In a testamentary-capacity dispute, mediation can allow the parties to consider:

• the strength of the medical evidence;
• the quality of the will-drafting solicitor's evidence;
• the risk associated with retrospective expert opinion;
• the burden of proof;
• the potential outcome on intestacy;
• the cost of trial;
• the cost of appeal;
• the estate available to satisfy those costs; and
• the emotional effect of continuing litigation between family members.

It can also permit solutions unavailable to a judge. A court deciding the validity of a will often faces a binary question: valid or invalid. At mediation the parties can reach a more nuanced settlement.

The difference between an unfair will and an invalid will

Perhaps the most useful lesson from Clitheroe is that these are different questions.

A parent may leave an unequal will for perfectly rational reasons. A parent can make decisions their children regard as unfair. They may favour one child. They may dislike another. They may misjudge somebody's character. None of those matters alone establishes incapacity.

But where the testamentary decision is influenced by a disorder of the mind and a qualifying delusion, the legal position can be different.

That boundary is inherently fact-sensitive. And where the evidence can reasonably be argued both ways, litigation becomes uncertain and expensive.

The lesson from Clitheroe v Bond

Clitheroe contains almost every ingredient which makes contested probate difficult: grief; estrangement; accusations between family members; questions of mental capacity; competing medical evidence; a disinherited child; a modest estate; and ultimately years of litigation between a brother and sister.

It also demonstrates why careful will preparation matters. Where a testator intends substantially to exclude a child and there are potential questions about capacity, detailed contemporaneous evidence can be invaluable.

But once the dispute has arisen, parties should also keep proportionality under constant review.

The central question may begin as: "Was Mum capable of making this will?"

As the costs grow, another question becomes equally important:

"How much of Mum's estate are we prepared to spend finding out?"

That is precisely the type of question which mediation allows parties to confront before the answer is determined for them by the court.

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Disputes of this kind are becoming more common: see our analysis of the rise in probate caveats and contested probate claims. For related practice information, see Inheritance & Wills, Probate & Estates and how mediation works.

See also Ilott v The Blue Cross: can an estranged adult child challenge a parent’s will?.