John Keith Clitheroe v Susan Jane Bond

JurisdictionEngland & Wales
JudgeMrs Justice Falk
Judgment Date04 May 2021
Neutral Citation[2021] EWHC 1102 (Ch)
CourtChancery Division
Docket NumberCase No: CH-2020-000154
Date04 May 2021

[2021] EWHC 1102 (Ch)

IN THE HIGH COURT OF JUSTICE

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)

Royal Courts of Justice, Rolls Building

Fetter Lane, London, EC4A 1NL

Before:

Mrs Justice Falk

Case No: CH-2020-000154

Between:
John Keith Clitheroe
Claimant/Appellant
and
Susan Jane Bond
Defendant/Respondent

Vikram Sachdeva QC, Jack Anderson and Ruth Hughes (instructed by Irwin Mitchell LLP) for the Appellant

Thomas Dumont QC and Edward Hicks (instructed by Birkett Long LLP) for the Respondent

Hearing dates: 23 and 24 March 2021

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mrs Justice Falk Mrs Justice Falk

Introduction

1

This is an appeal against a decision of Deputy Master Linwood on 21 May 2020 in a bitter probate dispute (the “Decision”). By the Decision the Deputy Master refused to admit to probate two wills executed by the deceased, Mrs Jean Mary Clitheroe, on 21 May 2010 and 3 December 2013 (the “2010 will” and “2013 will” respectively) on grounds of incapacity. I granted permission to appeal on 27 November 2020.

2

On 15 January 2021 the Defendant and Respondent to the appeal, Mrs Susan Bond, filed a Respondent's notice and made an application to adduce further evidence from the Respondent and from another witness (the “ Ladd v Marshall application”). On 3 March 2021 the Appellant filed witness statements from the Appellant and two further witnesses in response and, on 16 March 2021, made an application which sought either a) a stay of the Ladd v Marshall application pending a determination as to whether there had been an error of law in the Decision, or b) cross-examination of the witnesses and a doubling of the two day time estimate for the appeal. A further application was made by the Appellant on 19 March that, if the Respondent's application to admit evidence was allowed, then the Appellant should also be able to rely on further evidence, in the form of a transcript of a conversation between the Respondent and a Ms Josephine Walsh, who is the Appellant's current partner.

3

By the time of the hearing the parties had agreed that the Ladd v Marshall application could not be dealt with in the time available, and that I should proceed to hear submissions on the grounds of appeal and defer determining that application (and associated applications by the Appellant) at this stage.

4

The trial judge was told that the estate is worth some £350,000. The figure that I was given was around £400,000. The sum genuinely in dispute is materially less than that. The dispute is essentially as between intestacy, where the Appellant and Respondent would share equally, and the validity of wills either of which would leave the entire residuary estate (after certain legacies) to the Appellant. I expressed concern at the hearing about the cost of the litigation by reference to the amount in dispute, as well as the broader impact of the dispute on the family. My concerns have not abated.

Background facts

5

The Appellant, Mr John Clitheroe, and the Respondent are brother and sister. They are the surviving children of the late Mrs Jean Clitheroe by her former husband Mr Keith Clitheroe. The couple's eldest child, Debra (known as “Debs”), died on 19 December 2009. I will refer to the family members by their first names, without intending any disrespect.

6

Jean was born in 1941 and married Keith in 1961. Debs was born in 1963, Susan (“Sue”) in 1967 and John in 1968. In around 1980 Jean discovered that Keith had been sexually abusing Sue and divorced him.

7

Debs was a primary school teacher who became a deputy head. She never married and had no children. She was initially diagnosed with skin cancer in 1989. The cancer returned in 2007, and the diagnosis was terminal.

8

Sue married Peter Bond in 1999. They have one daughter, Charlotte, born in 2003. John married Zoe Reed in August 2010. They have two children, Holly and Sophia. They divorced in 2015.

9

In his reserved judgment dated 21 May 2020 (the “Judgment”, [2020] EWHC 1185 (Ch)) the Deputy Master found that prior to her death Debs was very close to Jean, Sue and Charlotte (Judgment at [6]).

10

Shortly before Debs' death there was a distressing incident which the judge accepted marked the turning point of Sue's relationship with her mother (Judgment at [186]). This involved a disagreement between Sue and Jean about obtaining morphine to alleviate Debs' excruciating pain, which the judge found that Jean deliberately and repeatedly delayed. Sue had called the Macmillan nurse to obtain morphine against Jean's wishes, in circumstances where Jean had threatened that she would not forgive her or speak to her again if she did (Judgment at [178] and [222]).

11

No will of Debs was found, and following the execution by Keith of a deed of variation the vast majority of Debs' estate passed to Jean, including her bungalow in Clacton-on-Sea (the “Bungalow”).

12

The judge found that Debs' death had a profound effect on Jean, who was already in ill-health. Following Debs' death she “took to her bed” and remained bed-ridden until she died on 11 September 2017, the primary cause of death being sepsis (Judgment at [9]).

13

Prior to and immediately following Debs' death Jean had been living at the old family home in Little Clacton (“Conifers”). Following a prolonged stay in hospital between May and July 2010, which started just after the 2010 will was executed, Jean was discharged to the Bungalow, where she lived until her death.

14

Sue visited Jean in hospital in 2010 almost every day, but on Sue's evidence the relationship rapidly declined after John's wedding in August 2010. Attempts by Sue at reconciliation failed. The judge found that Sue was not responsible for the estrangement (preferring her account to John's version of events), that Jean had taken against Sue and that Jean had also irrationally maintained that it was Sue who cut her out rather than the other way round (Judgment at [222] to [229]).

The wills

15

The 2010 will was prepared in some haste by solicitors and without a face-to-face meeting with Jean. It appointed John as the sole executor, left Jean's Swarovski Crystal collection to Charlotte, a diamond and garnet ring to Sue, some other small legacies to named individuals and the residuary estate to John.

16

The 2013 will also appointed John as sole executor. It left the residuary estate to John (or his daughters if he predeceased Jean). The legacies were altered and limited to a gift of £5000 to each of Jean's three granddaughters, plus a bequest of the diamond and garnet ring to Sophia.

17

Jean provided handwritten instructions for both wills. The note she provided for the 2010 will stated that she was not giving more to Sue “as she's a shopaholic & would just fritter it away”. An attendance note of a call that a Chartered Legal Executive at Powis & Co, the firm of solicitors who prepared the 2010 will, had with Jean recorded that she was “evidently very clear what you wish to do”, and stated that Jean did not wish Sue to have anything apart from the diamond ring “as she is such a spendthrift and will just spend away her inheritance” (Judgment at [20] to [22]).

18

For the 2013 will Jean initially gave instructions by telephone to Powis & Co in early April 2013. A note of the call stated that she now wanted to leave everything to John “as he does everything for her and nothing to her daughter” (Judgment at [25]). Jean's handwritten notes provided the following day (and delivered to the solicitors, like her instructions for the 2010 will, by John) are summarised at [26] to [30] of the Judgment. They referred to Jean having not seen Sue since John's marriage and to Sue not letting Jean see Charlotte. A number of other comments were made, including about Sue being a shopaholic, and that if left to Sue Jean would have “starved to death”. The notes also accused Sue of theft of a number of items and of going through Debs' property with her husband and a friend “taking anything which took their eye”. The will was executed some months later, on 3 December 2013, during a visit to Jean's home by another Chartered Legal Executive from Powis & Co. There was a further manuscript note from Jean that bears the same date as this will, summarised in the Judgment at [35] to [37]. Among other things this repeated the “shopaholic” allegation but specifically claimed that Debs held that view about Sue, and repeated allegations of theft and of “ransacking” the Bungalow.

19

The Judgment records at [41] that, whilst instructions for both wills were not taken in accordance with best practice and the “golden rule” was ignored, the Deputy Master formed the impression that “Jean gave detailed and believable reasons which she expressed directly and without equivocation”. (The so-called “golden rule” was conveniently summarised by Briggs J in Key v Key [2010] 1 WLR 2020 as follows:

“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 [2016] EWCA Civ 37 at [47].)

The claim and the Decision

20

John's claim propounded both wills....

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2 cases
  • Jennifer Baker v Diane Hewston
    • United Kingdom
    • Chancery Division
    • May 5, 2023
    ...(as he now is) in Re Key [2010] 1 WLR 2020; Fancourt J in Re Templeman [2020] WTLR 441; Falk LJ (as she now is) in Re Clitheroe [2021] EWHC 1102 (Ch); and most recently by Zacaroli J in Re Clarke [2023] EWHC 13 I have carefully considered, but will not discuss, all these cases. However, H......
  • Gareth Hughes v Carys Pritchard
    • United Kingdom
    • Chancery Division
    • June 11, 2021
    ...would not have been made.” 37 It has been established that that test survives the Mental Capacity Act 2005 (see Clitheroe v. Bond [2021] EWHC 1102 (Ch)). What has become the known as the golden rule is that where there is doubt about testamentary capacity, that should be assessed by a medi......
1 firm's commentaries
  • Legacy Loop: Summer Edition 2021
    • United Kingdom
    • Mondaq UK
    • June 30, 2021
    ...the summer edition of our Legacy Loop coverage Clitheroe v Bond (2021) EWHC 1102 (Ch) This recent decision is significant in reiterating that the correct test when determining mental capacity to make a will is still that set out in Banks v Goodfellow (1870) and not the Mental Capacity Act 2......

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