Effect of bereavement on capacity – Key v Key [2010] EWHC 408

 In Wills

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This case involved a slight development in the Banks v Goodfellow test for mental capacity as it takes into account the testator’s decision-making powers rather than just comprehension which the Judge felt was necessary because of the development of psychiatric medicine.

The facts

George Key died on 20 July 2008, two months before his 91st birthday and not quite two years after his wife Sybil’s death. They had been married for 65 years.

He was a farmer, having inherited three small farms from his father, and his two sons, Richard and John, spent the whole of their working lives on the family farm joining him in partnership in about 1972. Each of them was given a house to live in as a wedding present and acquired 100 acres each of the land in 1996 and most of the rest by purchase in 2006 when the partnership was dissolved. This left George with a farmhouse, farm buildings together with a garden and adjacent land at Hall Farm, a meadow known as Low Meadow of 7 or 8 acres and cash at the bank; modest personal chattels and a car.

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Mr & Mrs Key also had two daughters Jane and Mary. Jane lived nearby and was a university tutor; Mary moved to the USA but made two visits a year to England during part of which she spent time with her parents. For example she spent a few days caring for her father following her mother’s death.

One week after Sybil’s death Mr Cadge, a solicitor to the family, came to see George to make a new Will for him at the request of Mary. Two days later Mary took her father to the solicitor’s office to sign his new Will (the 2006 Will). This Will provided for the bulk of his estate to be divided between Jane and Mary whereas George’s previous Will (the 2001 Will) provided for a life interest for Sybil with the remainder to be divided equally between his two sons.

Richard and John challenged the 2006 Will on the basis of want of testamentary capacity and want of knowledge and approval in the process damaging the previously close and caring family relationships.

The ‘golden rule’

Sadly, Mr Justice Briggs said in this case that

“a significant element of responsibility for this tragic state of affairs lies with Mr Cadge. Contrary to the clearest guidance, in well know cases, academic texts and from the Law Society, Mr Cadge accepted instructions for the preparation of the 2006 Will, from an 89 year old testator whose wife of 65 years standing had been dead for only a week without taking any proper steps to satisfy himself of Mr Key’s testamentary capacity, and without even making an attendance note of his meeting with Mr Key and Mary, at which the instructions were taken. Mr Cadge’s failure to comply with what has come to be well known in the profession as the Golden Rule has greatly increased the difficulties to which this dispute has given rise and aggravated the depths of mistrust into which his client’s children have subsequently fallen.”

The evidence

There was a wide range of evidence provided to assist the Judge over the question of George’s capacity:

  • Two medical experts
  • All the family members
  • 8 neighbours
  • Mr Cadge

It was evident from home visits by Dr Duthie, George’s GP, that by October 2006 his short-term memory was poor. Both medical experts agreed that before Sybil’s death he had the early signs of a dementing illness but neither felt this had deprived him of testamentary capacity at that stage. A central issue in this case was the effect on George’s mental condition of his bereavement. Apparently, there was little or no warning of Sybil’s imminent demise so her death came as a complete shock. Apart from the emotional effect the sudden death had upon him George had become completely dependent upon Sybil for his day-to-day living requirements and he felt totally unable to cope emotionally with the ordeal of attending her funeral.

Most of the lay witnesses described the effect of his bereavement as having brought a step-change for the worse in George’s mental & emotional condition. Mary & Jane acknowledged he had been upset by Sybil’s death but denied that he had been ‘devastated’ by it.

Dr Duthie made a home visit on 1 December 2006 the notes for which stated George had not been sleeping and he needed a full social care package because he was ‘high risk’ as he had been so dependent on his wife. Subsequently the GP said that at this visit he had found George to be extremely distressed and unable to make decisions at this time.

The Judge decided that George was devastated by Sybil’s death rather than merely upset.

Following Sybil’s death Jane first and then Mary on her arrival from the USA had looked after George. On not finding their mother’s Will at home Mary rang Mr Cadge who confirmed that she had made a Will. He called at Hall Farm on Friday 1 December 2006 with both Mr & Mrs Key’s Wills.

Immediately on reading the 2001 Will Mary decided it was unfair in that it did not give equal treatment to the four children and although in her evidence she denied it the judge decided that she discussed the changes which she thought would be fair with her father and met with her father and sister in which the outcome was dividing the estate between Mary and Jane instead of the sons on the basis they had received large gifts of land already.

In the event George instructed Mr Cadge to give an increased legacy to a former employee of £7,500 (up from £5,000); Low Meadow to Richard and John equally and the ‘property’ i.e. the farmhouse and farm buildings to Jane & Mary. He specifically asked if this was ‘fair’. Mr Cadge asked if by ‘fair’ he meant equal which George confirmed. Mr Cadge then guessed the value of the property and advised that on the basis that the farmhouse was worth in the region of £400,000 and the buildings £200,000 and that the value of his two gifts to his sons of the land were each worth £300,000 then equality was achieved. For some reason he advised that the way to do this was to give each daughter a legacy of £300,000 along with the other legacies and then the residue to be shared equally between the four children. The reasoning for this was not included in the only hand written note Mr Cadge had made.

Whilst the Will was undoubtedly prepared promptly (handwritten on the evening of 1 December and typed the next day) there was nothing more than a poorly written note taken of the meeting and this did not coincide with the wording of the Will. There was also a separate memorandum prepared by Mr Cadge, for which the Judge decided he had received no instructions from George and which was after-the-event reconstruction.

Following Sybil’s funeral George told Richard that he had signed a number of things and could not remember what. As a result Richard contacted Mr Cadge on 11 December 2006. Subsequently, a copy of his father’s Will was provided to George and the sons immediately became aware of the 2006 Will. They instructed another firm through whom a medical report was requested which found that George did not have the requisite testamentary capacity to have made the 2006 Will so soon after Sybil’s death.

Ironically, despite having this evidence of his father’s lack of capacity Richard went on to arrange a Deed of Variation in his mother’s estate. Also, a replacement EPA was signed at this time in favour of Richard as allegedly an earlier one had gone missing

Testamentary Capacity

In referring to the test for testamentary capacity the Judge acknowledged that the main thrust of the Banks v Goodfellow test is the ability to understand and comprehend. The medical experts in this case were agreed that George suffered from affective disorder (depression) caused by bereavement which was more likely to affect powers of decision-making rather than comprehension.

There is a presumption of capacity if a Will is rational and by common consent the 2006 Will was rational in that it was generally fair if you take equal treatment of one’s children as fair. This meant that the evidential burden as to capacity fell back on those arguing that the Will was invalid.

The Judge found against George having capacity at the time of making the 2006 Will. He said:

“This is not one of those cases in which it is possible to point simply to a conspicuous inability of the deceased to satisfy one of the distinct limbs of the Banks v Goodfellow test. Rather it is a case in which I have been persuaded, taking the evidence as a whole, that Mr Key was simply unable during the week following his wife’s death to exercise the decision-making powers required of a testator. In any event, the defendants have not discharged the burden of proving that he was. To the extent that such a conclusion involved a slight development of the Banks v. Goodfellow test, taking into account decision-making powers rather than just comprehension, I consider that it is necessitated by the greater understanding of the mind now available from modern psychiatric medicine, in particular in relation to affective disorder.”

Want of knowledge & approval

The Judge also considered the want of knowledge and approval claim and concluded that George did not have knowledge and approval of the 2006 Will. He indicated that in concluding that George lacked capacity that should mean that he could not have knowledge and approval however, he reviewed and applied the law on the theoretical basis that he had sufficient capacity to know and approve the Will.

The Judge decided that this was a case where the element of suspicion arose from the circumstances of the preparation and execution of the 2006 Will. Mary did not prepare the 2006 Will but at the material time she was solely responsible for her father’s care. He was extremely vulnerable to any suggestion Mary made to him about changing his Will at that time and she did express her views about the unfairness of the 2001 Will. Thus in assenting to Mary’s suggestion of equal treatment George was not applying his own mind and decision-making powers to the problem and could not have knowledge and approval.

Practice points

  1. The great age of a testator, no matter how rational the person appears, does necessitate consideration of the possibility that they may lack testamentary capacity.
  2. The ‘golden rule’ whilst something of a blunt instrument is nevertheless important and will apparently always be referred to by the court. The Will draftsman should have a good reason for ignoring it.
  3. The advancement in psychiatric knowledge makes the job of a non-medical professional increasingly difficult.
  4. There is a need to look at the overall situation and not just the specific limbs of the Banks v Goodfellow test.
  5. The impact of bereavement on a person’s well being should not be overlooked.

© Gill Steel, LawSkills Ltd 2010

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