Key v Key [2010] EWHC 408 (Ch)

An 89-year-old widower made a new will a week after his wife's 65-year marriage ended in her death, radically favouring his daughters over his sons. The court held he lacked testamentary capacity due to bereavement-induced affective disorder combined with mild cognitive impairment.

Facts

George Douglas Key, a Norfolk farmer, died on 20 July 2008 aged 90. His wife of 65 years, Sybil, died unexpectedly on 27 November 2006. Mr Key had four children: Richard, Jane, John, and Mary. His sons Richard and John had farmed with him throughout their working lives and had received substantial lifetime gifts of farmland (100 acres each in 1996). Under his 2001 Will, the bulk of his estate went to his sons, with modest legacies to his daughters.

One week after Sybil’s death, on 4 December 2006, solicitor Michael Cadge attended Hall Farm at Mary’s request to take instructions for a new will. Mary had travelled from the USA and was caring for her father. On 6 December 2006, Mr Key executed the 2006 Will, which reversed the previous testamentary arrangements, leaving legacies of £300,000 each to his daughters and effectively giving them the bulk of the estate (including Hall Farm). Low Meadow went to the sons.

Mr Cadge failed to comply with the ‘Golden Rule’: he took no medical assessment of testamentary capacity, made no attendance note of the instructions meeting, and was unaware of GP Dr Duthie’s home visit note of 1 December 2006 recording Mr Key as ‘desperate’ and devastated by bereavement.

Issues

The principal issues were: (1) whether Mr Key had testamentary capacity when he executed the 2006 Will, applying the test in Banks v Goodfellow (1870) LR 5 QB 549; and (2) whether Mr Key knew and approved the contents of the 2006 Will.

Arguments

The claimants (Richard and John) argued that their father lacked testamentary capacity due to the combined effects of pre-existing cognitive impairment and the severe affective disorder caused by his bereavement, and that he did not know and approve the will’s contents, the circumstances being sufficient to excite suspicion.

The defendants (Jane and Mary) argued that Mr Key retained capacity, that the 2006 Will was rational and fair in treating children equally (accounting for prior gifts to the sons), and that Mr Cadge’s evidence demonstrated Mr Key took the initiative and assented to the terms.

Judgment

The Golden Rule

Briggs J emphasised the importance of the Golden Rule, derived from Kenward v Adams (1975) and Re Simpson (1977), requiring a solicitor preparing a will for an aged or seriously ill testator to arrange for a medical practitioner to assess capacity contemporaneously. Non-compliance does not invalidate a will but greatly exacerbates disputes. Mr Cadge’s failure to observe the rule, despite Mr Key’s age and very recent bereavement, significantly aggravated the dispute.

Testamentary Capacity

The judge applied the Banks v Goodfellow test, acknowledging that psychiatric medicine has advanced since 1870 such that bereavement-induced affective disorder must now be recognised as a potential cause of impaired testamentary capacity. The judge observed that affective disorders are more likely to affect decision-making powers than comprehension, noting a person may understand their property and relatives yet lack the mental energy to decide whom to benefit.

On the burden of proof, Briggs J followed Ledger v Wootton [2007] EWHC 2599 (Ch): the claimants raised sufficient doubt (advanced age, psychiatric infirmity, recent devastating bereavement, radical departure from prior testamentary intentions, and the beneficiaries being those in sole care of the testator) to shift the evidential burden back to the propounders.

The judge preferred the evidence of Dr Hughes (who had personally examined Mr Key in April 2007) over the more tentative opinion of Professor Jacoby (who had not). Dr Hughes concluded Mr Key lacked testamentary capacity in December 2006. Dr Duthie’s contemporaneous note of 1 December 2006 and his letter of 1 March 2007 provided significant corroboration that Mr Key was ‘extremely distressed’ and devastated by the bereavement.

The judge found Mr Key suffered a severe affective disorder which, combined with mild pre-existing cognitive impairment, deprived him of the decision-making capacity required of a testator. Mr Key was in a state of ‘extreme passive suggestibility’. The judge concluded:

Mr Key was “incompetent to the exertion required” for the purpose of making an important decision as to the disposition of his property upon his death.

This wording quoted Erskine J in Harwood v Baker (1840) 3 Moo PCC 282 at 297.

Knowledge and Approval

Following Fuller v Strum [2002] 1 WLR 1097, the judge held that although the will was rational and duly executed, circumstances excited sufficient suspicion to require affirmative proof of knowledge and approval. Mary was in sole care of her vulnerable father; the judge inferred (contrary to Mary’s denial) that she had forthrightly expressed her sense of unfairness about the 2001 Will and suggested her father change it in favour of his daughters. The suspicion was not dispelled.

Findings on Witnesses

Briggs J found Mr Cadge honest but unreliable, his account being substantially ‘after-the-event reconstruction’ working backwards from the will itself. Mary was acquitted of deliberate concealment but found to have an unreliable memory susceptible to becoming ‘unconsciously convinced’ of recollections different from the truth. The judge rejected Richard’s allegation that his sisters had conspired deceitfully or drugged their father.

Implications

The judgment represents a significant development in the application of the Banks v Goodfellow test. Briggs J acknowledged that the traditional test, focused on comprehension, must now accommodate modern psychiatric understanding that affective disorders (including bereavement) can impair decision-making powers without necessarily affecting cognitive comprehension. The judge described this as ‘a slight development’ of the test, necessitated by advances in psychiatric medicine.

The decision underscores the practical importance of the Golden Rule for solicitors dealing with elderly or recently bereaved testators. Failure to obtain a contemporaneous medical assessment of capacity, coupled with failure to keep proper attendance notes, exposes the resulting will to challenge and fuels family disputes. Mr Cadge himself conceded in cross-examination that, had he known of Dr Duthie’s observations, he would have considered it improper to proceed.

The case matters to private client practitioners, who must recognise that an apparently rational and ‘fair’ will may nonetheless fail if the testator lacked the decision-making capacity to approve it, particularly where a potential beneficiary has effective sole control over the testator at a time of vulnerability. The judgment also illustrates the evidential weight properly given to a medical examiner who personally assessed the testator over a purely retrospective expert, and the significance of contemporaneous GP records.

The boundaries of the decision are important: the judge did not hold that bereavement alone invariably destroys testamentary capacity, but that on the facts, bereavement-induced affective disorder combined with mild cognitive impairment and the circumstances of suggestibility, rendered Mr Key incapable of the required exertion. The outcome was that the 2001 Will was admitted to probate.

Verdict: The 2006 Will was not admitted to probate. The court held that Mr Key lacked testamentary capacity when executing the 2006 Will and, alternatively, did not know and approve its contents. Probate of the 2001 Will was to be granted instead.

Source: Key v Key [2010] EWHC 408 (Ch)