Sufficient “will” to make a Will?

A recent case examines the factors which can affect testamentary capacity

In Key and another v Key and others [2010] Briggs J held that Mr Key, an elderly gentleman who purported to make a new will only a week after his wife of 65 years had died, did not have capacity to make a valid will because the devastation he was suffering following his bereavement had affected his powers of decision-making.

The facts

Mrs Key died in late November 2006 after a short and sudden illness.  She was survived by her husband and their four adult children.  In the days following his wife's death, Mr Key was looked after at home by his two daughters, Mary and Jane.  Exactly a week after his wife's death, Mr Key’s solicitor (Mr Cadge) attended Mr Key at his home at Mary's request for the purposes of taking instructions for a new will for Mr Key, who had previously made four other wills, most recently in 2001. 

In radical contrast to the 2001 will which (subject to life interests in favour of his wife) left most of his estate to his two sons, Richard and John, Mr Key's new will provided for the bulk of his estate to be divided between Mary and Jane.  Richard and John sought to challenge this will on the grounds that their father lacked testamentary capacity, alternatively that he did not know and approve the contents of the new will - they said he had told them he knew he had signed some documents but did not know what he had done.  

Despite being aware of his client's advanced age, Mr Cadge had taken no steps to assess Mr Key's testamentary capacity, either himself or by arranging for a medical expert to be present during his meetings with Mr Key.  Mr Cadge said that this did not occur to him because Mr Key appeared to be the same client he had last visited some 6 months previously. 

However, everyone else who had seen Mr Key during the period between his wife's death and execution of his new will (or shortly thereafter) described him as having been "devastated" by his wife's death.  The evidence of numerous witnesses was that the bereavement had brought about a significant deterioration in his mental and emotional condition; there was even the suggestion that Mr Key had had difficulty in recognising that his wife had died.  Certainly Mr Key had been too emotionally unwell to attend his wife's funeral.

The court also heard evidence from two medical experts neither of whom had seen Mr Key at the time the will was made but one of whom had examined him in April 2007.  The experts agreed that prior to his wife's death, Mr Key had already been affected by an element of cognitive impairment (as a result of his advanced age), although they did not suggest that this would in itself have been sufficient to deprive Mr Key of his capacity to make a valid will.  However, the expert who had examined Mr Key in April 2007 had found him to be disorientated and paranoid as a result of his wife’s death; when questioned he went from being briefly aggressive to embarrassed and ashamed.  This behaviour led the expert to conclude that it was very unlikely that Mr Key could have had testamentary capacity in December 2006, because the effects of bereavement on his mental state were likely to have been even more serious immediately after his wife's death.

Crucially, Mr Key's GP, Dr Duthie, who had examined him several times prior to and following his bereavement, noted that in addition to his memory problems, he was clearly "devastated" and "extremely distressed" by his wife's death.  Dr Duthie said that he would have had concerns about Mr Key making decisions at that time. 

In Jane and Mary’s favour was the apparent "fairness" of the new will in leaving the bulk of the estate to his two daughters (he had previously made substantial lifetime gifts to his two sons) and Briggs J considered this.  However, none of the four previous wills had recognised that it was important to treat the children equally.  Whilst it was possible that Mr Key had become a "late convert" to the concept of fairness, Briggs J felt that this was far from probable. 

The test for capacity

The test for testamentary capacity derives from Banks v Goodfellow [1870] which provides that in order to have the necessary capacity to make a will a testator must be able to understand:

• The nature of his act (i.e. making a will) and its effects
• The extent of the property of which he is disposing and
• The claims to which he ought to give effect 
• In addition, he must not be subject to any disorder of the mind as shall "poison his affections, pervert his sense of right or prevent the exercise of his natural facilities". 

Key v Key is significant because of Briggs J’s acknowledgement that he was extending the legal principles set out in Banks v Goodfellow, justifying this on the grounds of the greater understanding of the mind now available from modern psychiatric medicine.  The expert evidence put forward at trial was that bereavement can (although it will not always) give rise to symptoms akin to those of depression, such as increased suggestibility, meaning that a person is more likely to assent to suggestions made by others without forming a view of his own. 

Taken as a whole, the evidence suggested that, even if he had the necessary understanding (of the extent of his property and those who he may wish to benefit), Mr Key was simply unable in the week following his wife's death to exercise the decision-making powers required of a testator.  Briggs J held that cognition was not enough: testamentary capacity also requires volition – the necessary “will” to make a will. 

The “Golden Rule”

The case is also a reminder of the “Golden Rule” when visiting elderly or infirm clients for the purposes of preparing a new will: that they should also arrange for a medical practitioner to satisfy him or herself as to the capacity and understanding of the testator and to make a note of his examination and findings.  In this case, Mr Cadge was heavily criticised for his failures. 

Emily Exton