John Clitheroe v Susan Bond
| Jurisdiction | England & Wales |
| Judge | Master Linwood |
| Judgment Date | 21 May 2020 |
| Neutral Citation | [2020] EWHC 1185 (Ch) |
| Date | 21 May 2020 |
| Docket Number | Case No: PT-2019-000212 |
| Court | Chancery Division |
[2020] EWHC 1185 (Ch)
DEPUTY Master Linwood
Case No: PT-2019-000212
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
PROPERTY TRUSTS & PROBATE LIST (ChD)
IN THE ESTATE OF MRS JEAN MARY CLITHEROE DECEASED
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Henry Hendron (instructed by direct access) for the Claimant
Mr Edward Hicks (instructed by Birkett Long LLP) for the Defendant
Hearing: 2 nd – 6 th March 2020
I direct that pursuant to CPR PD39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as remotely handed down may be treated as authentic.
This is a bitter family dispute between the Claimant brother and Defendant sister as to whether their mother, the deceased, had testamentary capacity to make each of her two wills and in addition or in the alternative whether either or both wills resulted from fraudulent calumny. With no disrespect intended I will refer to the wider family members by their first names, using where possible the names used in the family correspondence.
I first outline the wider family by history and relationships. Then I set out the essence of the claim and counterclaim, the issues I am to decide, certain discrete matters which inform or play a substantial part in those issues, and summarise the evidence of the 9 witnesses who gave oral evidence and the expert evidence. I then turn to the law, my findings of fact for each issue and my decisions.
The Wider Family
The deceased (“Jean”) was born in 1941. She married Keith Clitheroe in 1961. They had 3 children – Debra (“Debs”) born in 1963, Susan (“Sue”) in 1967 and John in 1968. Jean and Keith separated in about 1980 when Jean discovered that Keith had been abusing Susan (although this has relatively recently been challenged by John). Jean and Keith divorced in 1982. Keith lived locally, in Essex, for a while and then went to the Isle of Wight and then Spain for about 10 years in each place before returning to the UK.
Debs sadly died of cancer on 19 th December 2009. She was just 46 years old. She was trained as a primary school teacher and by all accounts was a most dedicated one, her last appointment being Deputy Head at St Osyth Church of England Primary School. She did not have children herself but besides her devotion to her school and pupils was a long standing and passionate fan of Colchester United, attending all home and away games. She was especially devoted to her family including in particular her niece Charlotte, and had many wider interests, especially collectibles. She was said to be the lynch pin of the family.
Debs bought 78 Woodlands Close, Clacton-On-Sea (“the Bungalow”). In 1989 she was diagnosed with skin cancer. Most unfortunately, after treatment, it returned in 2007. Her diagnosis was terminal.
No will was ever found. That is a matter of great concern to Susan, in circumstances where Debs was known as being a very organised person, had plenty of time in which to put her affairs in order (and she had taken out various insurance policies including a whole life one despite having no dependants.) Further, she was very close to Jean, Susan and Charlotte, and apparently was aware of the benefits of having a will in place. Her estate was administered in intestacy and so her parents benefited. Keith signed a Deed of Variation transferring all but £5,000 of his share to Jean.
Sue married Peter Bond in 1999. They have one child, Charlotte, born in about August 2003. Sue took early retirement about then. Her career culminated in her appointment in July 1998 as Branch Manager 3 of Lloyds Bank, Clacton-On-Sea. She had also worked part time in diverse areas such as selling clothes, books and cleaning.
John married Zoe in August 2010. They have 2 children and divorced in 2015. John was in partnership with Peter Bond as Estate Agents from about 2000 with offices on Station Road, Clacton-On-Sea, very close (“20 seconds” as John put it) to Powis & Co, Solicitors, (“Powis”) who acted at various times for Jean as to her wills and also for John on his divorce. John's current partner is Ms Josephine Walsh who has with permission of the Court represented him at various hearings and has conducted to a substantial extent his claim, as can be seen by her instruction of Dr Hugh Series.
Jean was deeply affected by Debs' illness and death and as she put it “took to her bed” on the death of Debs from late 2009. She was at the time also suffering from some longstanding ailments. She remained bed-ridden until her death on 11 th September 2017 aged 76. The primary cause of death was sepsis, plus infection of right hip, anaemia, acute renal failure, leg ulcers and frailty.
The essence of the claim and counter-claim
Jean left two wills in similar terms, both prepared by Powis. By the one dated 21 st May 2010 (“the 2010 Will”) John was appointed executor and trustee, and took the residuary estate after small bequests of chattels to Sue and Charlotte. The will dated 3 rd December 2013 (“the 2013 Will”) changed the 2010 Will by giving Jean's grandchildren Charlotte, Holly and Sophia £5,000 each; John took the residuary estate. Mr Hicks told me the estate is worth some £350,000.
Jean gave detailed reasons for excluding Sue; in her handwritten instructions to Powis for the 2010 Will she said Sue was “a shopaholic and would just fritter it away”. Powis in an attendance note recorded Jean saying Sue was a “spendthrift and will just spend her inheritance”.
Jean's instructions to Powis for the 2013 Will in handwritten notes dated 2 nd April and 3 rd December 2013 make wider allegations against Sue to include lack of contact, Jean's refusal to give Debs' estate namely the Bungalow to Charlotte, her spendthrift ways and an alleged ransacking of the bungalow after Debs' death.
John in his claim propounds both Wills. Sue disputes their validity and asks the Court to find that Jean died intestate. She says Jean suffered from a complex grief reaction from about the time of Debs' death and a continuing affective disorder beyond it, which appeared by her depression and insane delusions regarding Sue, together with a poisoning of her mind against Sue.
Sue says the reasons Jean gave were false or else based on false beliefs induced by John, who knew them to be false or else did not care if they were or not. Sue says Jean lacked testamentary capacity as to both Wills or alternatively or additionally the 2013 Will was as a result of fraudulent calumny. She therefore counterclaims for an order that the court pronounce against the force and validity of both Wills and that Jean died intestate.
The Issues
Below I reproduce the List of Issues provided by Mr Hicks
“ As to testamentary capacity:
1. 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);
2. Whether, as a symptom thereof, the Deceased suffered from any insane delusions regarding the Defendant, or otherwise that her mind was poisoned against the Defendant, as at the execution of the Wills or either of them (the burden being on the Claimant to demonstrate that she did not);
3. Whether any such delusions or poisoning of the Deceased's mind influenced the making of the wills or either of them (the burden being on the Claimant to demonstrate that it did not).
As to fraudulent calumny:
4. Whether the reasons of the Deceased for excluding the Defendant from any or any substantial benefit from her estate represented or were the product of false beliefs induced or encouraged by the Claimant's words or conduct, and if so whether he knew they were false, or did not care whether they were true or false (the burden being on the Defendant to establish the same).
General
5. In determining these core issues, the court will have to consider various more detailed matters.
6. In particular, the Court will have to determine what the reasons the Deceased made the 2010 and the 2013 Wills or either of them in terms that effectively excluded the Defendant from any or any significant benefit from her estate actually were, or otherwise what beliefs influenced her in making the wills. Those reasons or beliefs may include the following:
(a) That the Defendant had falsely accused Keith Clitheroe of the abuse, and had thereby broken their marriage;
(b) That the Defendant had acted in some way wrongfully by requesting the Macmillan Nurse to give Debra morphine in the final few days of her life;
(c) That the Defendant was a shopaholic/spendthrift, and in particular that Debra disapproved of the same, Debra and Jean only buying things out of need and not want;
(d) That the Defendant did not see the Deceased because she did not care about the Deceased, and deprived the Deceased of access to Charlotte;
(e) That the Defendant was searching for a will of Debra's that did not exist;
(f) That the Defendant was pressuring the Deceased into giving her Debra's bungalow, despite no will of Debra's having been found, or otherwise that the Defendant wanted to mortgage the bungalow to send Charlotte to private school;
(g) That the Defendant stole from the Deceased, in particular;
(i) A 9ct gold watch Jean gave her;
(ii) Various cameras;
(iii) A digital projector;
(iv) A new personal computer;
(v) Harry Potter Books (some hardback, some paperback);
(vi) Everything in Debra's locker at School;
(vii) 65 trolls from Debra's classroom;
(viii) Numerous DVDs, CDs, videos and books;
(ix) Swarovski crystals given to Debra for safe keeping, said to be worth about £30,000 10 years previously;
(x) Other things from Debra's garage.
(h) That the Defendant stole from the Deceased's bank account when she worked for Lloyds;
(i) That...
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