Key v Key

An elderly testator's capacity was impaired by grief following his wife's death, so a will made a week later was invalid, and the solicitor should have followed the golden rule of obtaining a medical opinion.

Citation
[2010] EWHC 408 (Ch), [2010] 1 WLR 2020
Court
High Court (Chancery Division)
Year
2010
Subject
Wills, Succession and Probate
Topic
Testamentary capacity, knowledge and approval

Facts

Mr Key, an elderly farmer, made a new will one week after the death of his wife of 65 years, which changed his previous dispositions significantly in favour of his daughters and away from his sons. The will was prepared by a solicitor who did not obtain a medical opinion on his capacity, or keep a proper attendance note. The sons challenged the will, on the grounds of lack of capacity and lack of knowledge and approval.

Legal principle

Briggs J held that the will was invalid. He said that the test in Banks v Goodfellow had to be applied in the light of modern understanding of mental illness, and that affective disorders, including the effects of bereavement, could affect testamentary capacity, as well as cognitive impairments. The evidence showed that Mr Key had been severely affected by grief, which impaired his capacity to make a new will involving complex decisions about the claims of his children. The solicitor should have followed the golden rule, under which the making of a will by an aged or seriously ill testator should be witnessed or approved by a medical practitioner.

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