BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS (ChD)
ON APPEAL FROM THE ORDER OF DEPUTY MASTER LINWOOD ON 21 MAY 2020
IN THE MATTER OF JEAN MARY CLITHEROE DECEASED (PROBATE)
Fetter Lane, London, EC4A 1NL
B e f o r e :
| JOHN KEITH CLITHEROE
- and –
|SUSAN JANE BOND
Thomas Dumont QC and Edward Hicks (instructed by Birkett Long LLP) for the Respondent
Hearing dates: 23 and 24 March 2021
Crown Copyright ©
Mrs Justice Falk:
"7. The substance of the golden rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings…"
The rule is not a rule of law but rather a guide to avoiding disputes: Burns v Burns  EWCA Civ 37 at .)
The claim and the Decision
"I cannot accept much of what he said unless it was supported by independent documentary evidence… In general, where his evidence conflicted with others, I prefer their accounts."
"She did not seem to care whether what she said was the truth or not…" (Judgment at )
"I… do not accept Josephine's evidence where it conflicts with others…" (Judgment at )
Ground 1: Banks v Goodfellow
The Banks test
"It is essential …that a testator [a] shall understand the nature of the Act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, [d] 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 the mind had been sound, would not have been made."
(I should add that there is some debate as to whether the test has four limbs as indicated in Sharp v Adam, or three as referred to in Hawes v Burgess  EWCA Civ 94, but the point is not material for the purposes of this decision.)
"97. The burden of proof in relation to testamentary capacity is subject to the following rules. (i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. (ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. (iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity none the less: see generally Ledger v Wootton  WTLR 235 , para 5, per Judge Norris QC."
The MCA test
"An Act to make new provision relating to persons who lack capacity; to establish a superior court of record called the Court of Protection in place of the office of the Supreme Court called by that name; to make provision in connection with the Convention on the International Protection of Adults signed at the Hague on 13th January 2000; and for connected purposes."
"1. The principles
(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
2. People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to–
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
3. Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable–
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of–
(a) deciding one way or another, or
(b) failing to make the decision."
Whether to allow the argument to be advanced
"16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.
17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b) had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad  EWCA Civ 2 at  and ).
18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs (R (Humphreys) v Parking and Traffic Appeals Service  RTR 22 , para 29)."
"It is not in dispute that to withdraw a concession or take a point not argued in the lower court requires the leave of this court. In general the court expects each party to advance his whole case at the trial. In the interests of fairness to the other party this court should be slow to allow new points, which were available to be taken at the trial but were not taken, to be advanced for the first time in this court. That consideration is the weightier if further evidence might have been adduced at the trial, had the point been taken then, or if the decision on the point requires an evaluation of all the evidence and could be affected by the impression which the trial judge receives from seeing and hearing the witnesses. Indeed it is hard to see how, if those circumstances obtained, this court, having regard to the overriding objective of dealing with cases justly, could allow that new point to be taken."
"…the decision whether it is just to permit the new point will depend upon an analysis of all the relevant factors. These will include, in particular, the nature of the proceedings which have taken place in the lower court, the nature of the new point, and any prejudice that would be caused to the opposing party if the new point is allowed to be taken."
"An appellate court, in the interests of justice, will normally seek strenuously to avoid an outcome which results in the parties, who have already gone to trial on the quantification of a claim, having to amend their pleadings and to adduce further evidence to apply its ruling on a new issue of law to the facts of their case. In a normal litigation, the need for a retrial would be a strong and normally determinative pointer against allowing a party to withdraw a concession which had influenced the way in which a litigation had been conducted."
Does the MCA test now govern testamentary capacity?
"(1) The court may make declarations as to–
(a) whether a person has or lacks capacity to make a decision specified in the declaration;
(b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration;
(c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person."
For these purposes the "court" is the Court of Protection: s 64(1) MCA.
"The Act's new definition of capacity is in line with the existing common law tests, and the Act does not replace them. When cases come before the court on the above issues, judges can adopt the new definition if they think it is appropriate. The Act will apply to all other cases relating to financial, healthcare or welfare decisions."
"It is a well-established principle of construction that a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion."
In Black-Clawson Lord Reid emphasised at p.614 the need to consider the "mischief" which the Act was intended to remedy, and commented that:
"…in the absence of any clear indication to the contrary Parliament can be presumed not to have altered the common law further than was necessary to remedy the 'mischief'."
Lord Wilberforce referred at p.632C to a "presumption" against changes in the common law and an expectation that, in respect of a principle which was:
"… perfectly well known and understood… it was to be expected that… the common law would only be changed by a clear and express provision."
Lord Simon referred at p.650E to a canon of construction that "clear and unmistakable words will be required for the abrogation of a long-standing rule of law", citing the extract from Devlin J's judgment in Wilkinson set out above.
Grounds 2 and 3: incorrect interpretation and application of the test for delusions
The Deputy Master's analysis
"A delusion is a belief in the existence of something which no rational person could believe and, at the same time, it must be shown to be impossible to reason the patient out of the belief."
William on Wills cites Dew v Clark (1826) 3 Add 79, 162 ER 410 as authority for this.
"… you must of necessity put to yourself this question and answer it: Can I understand how any man in possession of his senses could have believed such and such a thing? And if the answer you give is, I cannot understand it, then it is of the necessity of the case that you should say the man is not sane."
The expert evidence
"… it must be shown not only that it is false [but] also that it was a belief which was unreasonable for the person to hold. A delusion should be a fixed belief, in other words, it should not be possible to persuade someone out of a delusion by providing evidence or reasons suggesting that they could be mistaken."
He added that even if the allegations about Sue were found to be false:
"… it would have to be additionally shown that the deceased continue to hold them in the face of reasonable evidence of their falsity. A person may be mistaken in their beliefs, but that does not make them delusional."
"In psychiatry, a delusion is a fixed false belief which is out of keeping with the person's social, cultural, educational, or religious background. The word 'fixed' 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. The central idea of a delusion is that the mind has adopted a belief which is out of keeping for that person's background and rigidly holds on to it, no matter what arguments against it are put. Delusions do not respond to reason. It is not possible to talk someone out of a delusion.
If the deceased had reasonable grounds for believing that [claims about Sue's conduct] were true, then in my view they were not delusional. They can 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 have been made to persuade her that they were false.
…demonstrating their delusional nature requires more than simply demonstrating that the beliefs were false. It would require it to be shown that the deceased held those beliefs unreasonably, and could not be persuaded by any means that she was mistaken…"
He expressed his conclusion on this issue as follows:
"I do not think that it is correct [to] characterise [Jean's] beliefs about Susan as delusional on the evidence available. That would require it to be shown not only that her beliefs about Susan were wrong, but also that she continued to hold them in the face of ordinarily persuasive evidence that she was wrong."
"If it could be shown not only that all of these beliefs were false, but also that the deceased had no reasonable grounds for believing them then I accept that it would appear that her mind was poisoned against Susan."
"A delusion has to be fixed, that is incapable of being dislodged by reasonable argument or evidence."
He added that he had not seen evidence to suggest that anyone tried to persuade Jean that her beliefs about Sue were ill-founded, so "that in my view it is difficult to demonstrate that they were fixed beliefs".
"If it was shown that what [Jean] thought were [sic] false and fixed, meaning that she couldn't be talked out of it … and that it wasn't reasonable for a person in her position to think what she thought … then I would say that would be a delusion, and if she had a delusion then it is very possible that that was related to an affective disorder."
Discussion: the legal test
"… where there is delusion of mind there is insanity; that is, when persons believe things to exist which exist only, or, at least, in that degree exist only, in their own imagination, and of the non-existence of which neither argument nor proof can convince them, they are of unsound mind: or, as one of the counsel accurately expressed it, 'it is only the belief of facts, which no rational person would have believed, that is insane delusion.'"
"… pertinaciously adheres to some delusive idea, in opposition to the plainest evidence of its falsity; and endeavours, by the most ingenious arguments, however fallacious they may be, to support his opinion."
"But where the case set up is… that the belief… grew out of mere delusion of mind, and that the erroneous impression could be removed by no proof or argument; it becomes essential to ascertain what foundation in truth the belief had, and what means were used, without effect, to remove that belief, which is shown to be founded in error."
Did the Deputy Master fall into error?
"I would emphasise that this test does not require it to be a) evidenced and b) impossible to reason the person out of the belief. Those requirements are prescriptive."
I have to say that I find the reference to not being required to be "evidenced" difficult to follow. It may well be that what was meant is simply that it is not necessary to show by evidence that it was impossible to reason the patient out of the belief (as referred to in the William on Wills version of the test), but that is not clear.
Grounds 4 and 5: inadequate/irrational reasons for preferring evidence of Sue's expert; too low a threshold applied in determining lack of capacity
"254. Mr Hicks submits that the evidence submitted by John has not "come up to proof" as Dr Series in his reports has addressed the wrong question, as he concludes there is not enough information in the medical records to be confident that Jean had a clinical depressive disorder – see paragraph 8.2.10 of his report which I set out at  above. What he does not say is whether she did not have a depressive disorder.
255. In cross examination Dr Series accepted that he could not say Jean did not have an affective disorder – see  above. Then in re-examination he said if a psychiatrist examined Jean in the several year period after Debs' death, based on the information in the records, there was a good chance – it was definitely possible – even likely that she had a depressive disorder – see  onwards.
256. I accept Mr Hicks' submission that Dr Series' opinion does not discharge the burden of proof on John. Accordingly, the short answer is that Jean did not have testamentary capacity at the material times.
257. If I am wrong as to that, I must consider the expert evidence further. I have set out material extracts from the reports and oral evidence at [109-131] above. Professor Jacoby concluded (see ) that Jean was suffering from an affective grief disorder within the meaning in Banks v Goodfellow. He said that he used that term as it encompassed the complex grief reaction and persisting depression.
258. He went on to say that any lack of testamentary capacity could also be due to her suffering from insane delusions, if the beliefs Jean held are found to be false. Dr Series' approach was first that there was insufficient clinical evidence, although he did confirm that a positive diagnosis was possible – see the re-examination I refer to at  above.
259. Dr Series took as I have set out above a more prescriptive approach, on the basis of there being no proper psychiatric assessment of Jean in the records – or that if one had been carried out, it was not noted as such in those records. I prefer the approach taken by Professor Jacoby as
a) his conclusion arises from his professional opinion based on the records before him which he considers sufficient for the task and
b) to do otherwise could substantially limit such expert opinion and result in injustice.
260. Further, and in any event, the burden of proof is on John but the evidence of Dr Series is that more is needed - so again John cannot discharge the burden of proof. Finally, at the end of his oral evidence Dr Series accepted that the likely conclusion of any examining psychiatrist was that based on pain, medical problems and grief reaction Jean was likely to be diagnosed with an affective disorder -  onwards again. The differences between the experts therefore narrowed substantially.
261. In summary, I accept Professor Jacoby's opinion that Jean was at the material times suffering from an affective disorder which includes complex grief reaction and persisting depression that impaired her testamentary capacity.
262. Further, Dr Sheppard, Ms Baines and Ms Hennessy all gave evidence - [249-252 above] – as to how Jean did not accept Debs was going to die and how there was nothing else in Jean's life after Debs died.
263. Accordingly my answer to Issue 1 namely did Jean suffer from a complex grief reaction or other affective disorder as a result of Debs' death or otherwise is yes, and John has failed to prove that she did not so suffer."
"A. . . . My position, just if may be clear about this; I am not saying that I think she did not have a depressive disorder. I am saying that the evidence of the notes I have seen does not clearly establish to me that she did. I do think she had a prolonged and unusual bereavement reaction.
Q. Just putting it another way, can you positively say that she didn't have an affective disorder.
A. No, I can't.
Q. You can't. Can you say it is more likely than not that she didn't have an affective disorder?
A. (Pause) Well, I think that you would get different answers from different doctors. I am quite sure some doctors would have said, "Yes, she did have dissociative disorder", some psychiatrists. There is a whole book that was written by some psychiatrists about their concerns about the medicalisation of bereavement, and they have strong views that it should not be turned into a disorder."
"… there is a good chance that their additional assessment would have shown that she had a depressive disorder. I think that is a definite possibility. Maybe even likely, but that assessment never took place…"
"… I think it is quite likely that someone described as here might well have been diagnosed with a depressive disorder."
This is followed by a further explanation:
"The reason I think it is likely that at least some psychiatrists, had they assessed her, would have found a depressive disorder is because there were a number of factors known to be associated with depression – that is chronic pain, relative isolation, loss of her daughter, other medical problems, particularly the swollen legs, the osteomyelitis. So she had a whole . . . she had good reason to be depressed. So the risk factors were there, and we also know she had morbid thoughts and we know that she was lacking in energy."
"… the appellate court should first review the judgment, in the context of the material evidence and submissions at the trial, in order to determine whether, when all of these are considered, it is apparent why the judge reached the decision that he did. If satisfied that the reason is apparent and that it is a valid basis for the judgment, the appeal will be dismissed…. If despite this exercise the reason for the decision is not apparent, then the appeal court will have to decide whether itself to proceed to a rehearing or to direct a new trial."
Ground 6: refusal of admission to probate
Next steps regarding grounds 2 and 3
a) In the circumstances of this case, it would not be in the interests of justice to allow the question whether testamentary capacity should be determined using the MCA test rather than the Banks test to be pursued on appeal (although, if it were, I would have concluded that the Banks test continues to apply).
b) In order to establish whether a delusion exists, the relevant false belief must be irrational and fixed in nature. It not an essential part of the test that it is demonstrated that it would have been impossible to reason the relevant individual out of the belief if the requisite fixed nature can be demonstrated in another way, for example by showing that the belief was formed and maintained in the face of clear evidence to the contrary of which the individual was aware and would not have forgotten.
c) The Deputy Master did not give inadequate or irrational reasons for preferring the evidence of Professor Jacoby to that of Dr Series, and was entitled to conclude that there was a causal link between Debs' terminal illness and the delusions.
d) In relation to Grounds 2 and 3, I am adjourning the appeal for a period of three months to give the parties an opportunity to reflect on their positions and determine whether agreement can be reached without the expense of any further hearing. I trust that, in doing so, they will pay careful attention to the observations made at  to  above.