The judgment of the England and Wales High Court in Key v Key [2010] emphasised two points that legal practitioners should be mindful of:

1. Depression caused by bereavement can affect a person’s testamentary capacity; and
2. Legal practitioners need to be satisfied of a client’s testamentary capacity when taking instructions and supervising the signing of a will.

The facts

Esme Key died on 27 November 2006 after a short illness.  One week later, Michael Cadge, solicitor, attended on Mrs Key’s husband of 65 years, George Key to take instructions for a new will.

Mr Cadge’s attendance was arranged by one of Mr Key’s two daughters, Mary Boykin, who had discovered that Mr Key’s will signed in 2001 favoured his two sons.  Although the Court found no deception on the part of Mary, it did find that:

“Mary explained to her father in her usual forthright manner how very unfair she regarded his 2001 Will, and told him that she regarded the only fair disposition of his remaining property as being one under which she and her sister should be the beneficiaries, so as to take account of the substantial gifts of farmland which her father had already made to her brothers, and thereby bring about some semblance of equal treatment.  I infer also that, in response, her father gave in to her request that he change his will accordingly.”

Two days later, Mary drove Mr Key to Mr Cadge’s office to sign a new will which was rational on its face but a radical departure from Mr Key’s 2001 Will.  Following Mr Key’s death in 2008, the Court was asked to determine whether the 2006 Will or the 2001 Will should be admitted to probate.

Bereavement causing loss of capacity

The case was determined on evidence from two expert psychiatrists (one of whom had seen Mr Key), family members, neighbours, and Mr Cadge.

The psychiatrists agreed that Mr Key was affected by an element of cognitive impairment prior to Mrs Key’s death and it was possibly a precursor to dementia.  However, this was not sufficient alone to deprive Mr Key of testamentary capacity.

A number of witnesses who saw Mr Key in the weeks following his wife’s death described him as devastated, and having taken a turn for the worse, mentally and emotionally.  Mr Key’s general practitioner saw Mr Key four days after Mrs Key’s death and observed that:

“I found him extremely distressed and would have concerns in terms of him making decisions at this time, because of his emotional state after losing his wife.”

Justice Briggs said that capacity is not determined solely by whether Mr Key had the mental capacity to understand or comprehend what he was doing:

“The evidence of the experts in the present case shows… that 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 even who his relatives and dependants are, without having the mental energy to make any decisions of his own about whom to benefit.”

Evidence was given that a bereaved person may be more suggestible and likely to agree to something to end emotional pressure.  Bereavement can impede a person’s concentration, attention, and the ability to collect and retain information.  Depression caused by bereavement could manifest itself by symptoms similar to dementia, the difference being that a person could regain capacity once the depression had passed.

Solicitor’s failure to ensure capacity of testator

Justice Briggs was particularly critical of Mr Cadge’s role in the preparation and signing of the 2006 Will.  It was clear that Mr Cadge, with nearly 50 years experience in legal practice, had not attempted to satisfy himself of Mr Key’s capacity and had not made any meaningful notes of his meetings with Mr Key.

Despite being aware of Mr Key’s age and recent bereavement, Mr Cadge made no enquiry as to his client’s fitness to make a will.  Instead, Mr Cadge stated that it never occurred to him to make any such enquiries as Mr Key appeared unchanged from when he’d acted for him six months earlier.  Further, Mr Cadge’s notes for the preparation of the 2006 Will were not made at the meeting and were inconsistent with the will that was ultimately signed by Mr Key.

The Court found that:

“Mr Cadge was wholly unaware of the gravely deleterious effect upon Mr Key's powers of decision-making constituted by the combined effects of cognitive impairment and the affective disorder caused by his bereavement...”

Conclusion

Although a will should be reviewed after the death of a beneficiary, the legal practitioner reviewing the will must be certain of a recently bereaved testator’s capacity to give sound instructions.  The legal test is that testators must:

• understand the effect of making a will;
• understand the extent of property they are disposing of in the will;
• comprehend and appreciate competing claims on their estate; and
• not be subject to any disorders of the mind that would compromise their reasoning.

If testamentary capacity is an issue and the willmaker’s assets are significant, legal practitioners should consider the possibility of recording the interview to obtain instructions.

In rejecting the 2006 Will, the Court observed that the case reflected poorly on the professional competence of Mr Cadge.  Had Mr Cadge been more diligent, he may have helped avoid the transformation of “the formerly close relationship between his [Mr Key’s] sons and daughters into one of mutual suspicion, recrimination and distrust.”

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.
Principal author: Philip Davis