Key & Anor v Key & Ors

Testamentary capacity requires the ability to make the decisions inherent in a will, not merely to understand its terms. A severe bereavement-related affective disorder, particularly when combined with cognitive impairment and passive suggestibility, may therefore deprive a testator of capacity.

Due execution of a rational will initially raises a presumption of capacity. Once real doubt is raised, the propounder must prove capacity. Knowledge and approval likewise require an actual decision, rather than apparent assent. A solicitor should obtain a medical assessment and record when preparing a will for an aged or seriously ill testator, although non-compliance with that professional guidance does not itself invalidate a will.

Shortly after the death of his wife of 65 years, the deceased executed a new will. It replaced his earlier testamentary scheme, under which his sons were the principal beneficiaries, with substantial legacies for his daughters.

The sons challenged the 2006 Will on the grounds of want of testamentary capacity and want of knowledge and approval. The daughters, who were the principal beneficiaries, defended the will. The solicitor had taken instructions while one daughter was caring for the recently bereaved testator, without obtaining a medical assessment or making an adequate attendance note.

The central issues were whether the deceased had capacity to make the new will and, if so, whether he knew and approved its contents.

1. Claim succeeded. The 2006 Will was not proved. The deceased lacked testamentary capacity and, independently, the evidence did not establish knowledge and approval. Probate of the 2001 Will was to be granted.

2. The applicable test remained that in Banks v. Goodfellow (1870) LR 5QB 549. A testator must understand the act and effects of making a will, the extent of the property, and the claims on his bounty, and must not be affected by a relevant disorder of mind. The Mental Capacity Act 2005 had not displaced that test for this will, which pre-dated its commencement.

3. Due execution of a rational will initially raised a presumption of capacity. However, the sons raised real doubt. The deceased was aged, cognitively impaired, suddenly bereaved, dependent on his wife for domestic care, and had radically changed his will in favour of the daughters caring for him. The evidential burden therefore returned to the propounders.

4. The daughters did not discharge that burden. The court preferred the reliable evidence that the deceased was devastated by bereavement, together with the psychiatric and contemporaneous medical evidence. Bereavement had produced a severe affective disorder which, combined with cognitive impairment, impaired his decision-making and made him passively suggestible. The solicitor's reconstruction of the instructions was unreliable. The deceased's apparent assent was insufficient to show that he made the necessary dispositive decisions.

5. Even on the hypothetical assumption that capacity existed, the circumstances required affirmative proof of knowledge and approval under Fuller v. Strum [2002] 1 WLR 1097. The deceased was extremely vulnerable to the daughter's suggestion that he alter the will. The evidence did not show that he applied his own mind to that proposal. Approval requires a decision, not mere assent after a will is read aloud.

6. The court also reiterated the Golden Rule. A solicitor preparing a will for an aged or seriously ill testator should arrange a medical assessment of capacity and understanding with a contemporaneous record. Compliance is not a condition of validity, but the solicitor's failure substantially increased the difficulty and scope of the dispute.

not stated in the judgment.