Case digest

 The judgment in Re Key, Key v Key [2010] EWHC 408 (Ch.) brings into the
twenty-first century the subject of testamentary capacity, says Joseph Goldsmith

The classic test for testamentary capacity is that set out in Banks v Goodfellow (1870-71) 11 Eq. 472, in which Cockburn CJ stated that it is essential:

• that a testator shall understand the nature of the act of making a will and its effects;
• that he shall understand the extent of the property of which he is disposing;
• that he shall be able to appreciate and comprehend the claims to which he ought to give effect; and
• with a view to the latter object, 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.

Although the Banks v Goodfellow test remains good law, and has been consistently upheld as such by judges in the present century, it is also the case that psychiatric medicine has moved on since 1870. In particular, it now recognises a far wider range of circumstances that might be sufficient to deprive a person of the power of rational decision-making. One factor that has not (it seems) previously been considered in any reported decision, but which is likely to be relevant to many elderly clients is the effect of bereavement upon testamentary capacity. To what extent can the Banks v Goodfellow test be applied so as to accommodate this factor? That was the question that had to be considered by Briggs J in Re Key.

FACTS:

George Key died on 20 July 2008, two months short of his ninety-first birthday. His wife, Sybil, had died on 27 November 2006, after some sixty-five years of marriage. They were survived by their four children: Richard, Jane, John and Mary.

Mr Key was a farmer. Both of his sons, Richard and John, had spent the whole of their working lives farming with their father. By 2006, they had taken over the running of the family farm from him and, as a result of several (presumably tax-driven) lifetime transactions, had come to own the bulk of the farmland. They each lived within walking distance of their father. Jane lived a short drive away. Mary had moved to the US but paid twice-yearly visits to England for, at least part of which, she stayed with her parents. She returned home and looked after her father for a few days upon learning of her mother’s death.

On 4 December 2006, exactly one week after Sybil’s death, a solicitor attended upon Mr Key, at Mary’s request, for the purpose of taking instructions for a new will. Two days later, Mr Key was taken by Mary to the solicitor’s officers, where he duly executed the will (‘the 2006 Will’). It provided for the bulk of his estate to be divided between his two daughters. This was in stark contrast to his previous will, which had been made on 18 December 2001 and which left the bulk of his estate to his two sons.

In proceedings commenced after Mr Key’s death, Richard and John challenged the 2006 Will on the grounds of want of testamentary capacity and want of knowledge and approval. The claim was vigorously defended by Jane and Mary. It was common ground between them that Sybil managed all of the domestic arrangements and that Mr Key was wholly dependent on her for his daily domestic requirements. It was also common ground that, prior to Sybil’s death, Mr Key was already affected by an element of cognitive impairment, which may have been the precursor of dementia. Each side adduced the evidence of an expert witness – Dr William Hughes on behalf of the claimants and Professor Robin Jacoby for the defendants – but neither expert suggested that this pre-existing cognitive impairment had, on its own, deprived Mr Key of testamentary capacity before his wife died.

The central issue between the parties concerned the impact upon Mr Key of his wife’s death, which had been unexpected, and the effect that this had in relation to his capacity to make decisions relating to his will. The claimants asserted that Mr Key had been devastated by his wife’s death; the defendants contended that he had merely been upset.

HELD by Briggs J:

A ‘significant element of responsibility’ for the state of affairs before the court lay with the solicitor who had failed to comply with what has become known as ‘the Golden Rule’. The substance of this 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 intended testator, and to make a contemporaneous record of his examination and findings. However, the judge noted that compliance with the Golden Rule does not operate as a touchstone of the validity of a will and that non-compliance does not demonstrate invalidity. Its purpose is merely to assist in the avoidance of disputes or the minimisation of their scope.

The judge preferred the evidence of those who said that Mr Key was ‘devastated’ by his wife’s recent and unexpected death.

The judge noted that it must be recognised that psychiatric medicine has come a long way since the 1870s. In particular, both expert witnesses agreed that bereavement could constitute an affective disorder recognised by psychiatrists.

The courts must apply the Banks v Goodfellow test so as to accommodate such factors now recognised as capable of impairing testamentary capacity, in a way in which, perhaps, the court would have found difficult to recognise in the nineteenth century. In particular, Banks v Goodfellow had led to a test that was concerned primarily with capacity to understand or comprehend. However, it was clear to the judge that an affective disorder such as depression, including that caused by bereavement, is more likely to affect powers of decision-making than comprehension. A person in that condition may have the capacity to understand what his property is and who his relatives and dependents are, without having the mental energy to make any decisions of his own about whom to benefit.

The judge held that the 2006 Will was duly executed and eminently rational (in the sense that it could be said to be preferring the daughters in order to take account of lifetime gifts made by Mr Key to his sons). Nevertheless, there were several factors that raised a real doubt as to Mr Key’s capacity: Mr Key was both aged and infirm; he had suffered a recent and unexpected loss of his wife; the 2006 Will represented a radical departure from his previously expressed testamentary intentions; that departure was in favour of those who shared responsibility for his care during the short period between his wife’s death and the making of the 2006 Will, and one of whom had arranged for the solicitor to attend to take instructions. In the circumstances, the burden lay upon the defendant daughters to prove that their father had the requisite capacity.

The judge found that the daughters had failed to discharge this burden and that, on the balance of probabilities, Mr Key lacked testamentary capacity at the relevant time. The preponderance of evidence was that Mr Key was devastated by his bereavement at the time he made the 2006 Will. The judge accepted that such bereavement was a severe affective disorder, perhaps sufficient of itself to have deprived Mr Key of testamentary capacity, but probably sufficient to do so in combination with the mild pre-existing cognitive impairment.

Both experts largely agreed that an affective disorder caused by bereavement could make the sufferer suggestible and could make him say anything to put an end to emotional pressure. Dr Hughes, who had had the benefit of examining Mr Key in April 2007, had found him then to be disorientated in time, place and person and to have lost all interest in matters which might be expected to concern him. In Dr Hughes’ diagnosis, the primary cause of this was Mr Key’s bereavement.

Judgment

All of these factors pointed the judge towards the conclusion that, in the words of Erskine J in Harwood v Baker (1840) 3 Moo. PCC 282 at 297, Mr Key was ‘incompetent to the exertion required’ for the purpose of making an important decision as to the disposition of his property and affairs. He declared against the validity of the 2006 Will.

The case of Re Key is novel in that it seems to be the first reported decision on the effect of bereavement on testamentary capacity. Furthermore, as Briggs J recognised, it is not one of those cases in which it is possible to point to a conspicuous inability to satisfy one of the distinct limbs of Banks v Goodfellow. Rather than being concerned with cognitive impairment, the case is one in which, on the basis of all the evidence, it was clear that Mr Key was simply unable to exercise the decision-making powers of a testator. To the extent that such a conclusion involves a slight development of the Banks v Goodfellow test, the judge asserted that such a development is necessitated by the greater understanding of the mind now available from modern psychiatric medicine, in particular in relation to affective disorder.

Joseph Goldsmith is a barrister at 5 Stone Buildings. He can be contacted at clerks@5sblaw.com