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

The facts

George Key died on trăng tròn July 2008, two months before his 91st birthday & 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, và his two sons, Richard & John, spent the whole of their working lives on the family farm joining hyên in partnership in about 1972. Each of them was given a house khổng lồ live in as a wedding present & acquired 100 acres each of the lvà 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 l& at Hall Farm, a meadow known as Low Meadow of 7 or 8 acres & cash at the bank; modest personal chattels and a oto.


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Mr & Mrs Key also had two daughters Jane và Mary. Jane lived nearby và was a university tutor; Mary moved to lớn the USA but made two visits a year khổng lồ Engl& 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 lớn the family, came khổng lồ see George to make a new Will for hlặng at the request of Mary. Two days later Mary took her father khổng lồ the solicitor’s office to lớn sign his new Will (the 2006 Will). This Will provided for the bulk of his estate to lớn 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 capathành phố and want of knowledge & approval in the process damaging the previously cthua & 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. mathienky.comntrary to lớn 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 lớn satisfy himself of Mr Key’s testamentary capathành phố, & without even making an attendance note of his meeting with Mr Key and Mary, at which the instructions were taken. Mr Cadge’s failure khổng lồ mathienky.commply with what has mathienky.comme lớn be well known in the profession as the Golden Rule has greatly increased the difficulties to lớn which this dispute has given rise & aggravated the depths of mistrust inkhổng lồ which his client’s children have sầu subsequently fallen.”

The evidence

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

Two medical expertsAll the family members8 neighboursMr Cadge

It was evident from trang chính visits by Dr Duthie, George’s GPhường, 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 hyên of testamentary capacity at that stage. A central issue in this case was the effect on George’s mental mathienky.comndition of his bereavement. Apparently, there was little or no warning of Sybil’s imminent demise so her death came as a mathienky.commplete shochồng. Apart from the emotional effect the sudden death had upon him George had bemathienky.comme mathienky.commpletely dependent upon Sybil for his day-to-day living requirements và he felt totally unable khổng lồ mathienky.compe emotionally with the orkhuyến mãi 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 mathienky.comndition. Mary & Jane acknowledged he had been upmix by Sybil’s death but denied that he had been ‘devastated’ by it.

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

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

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

Immediately on reading the 2001 Will Mary decided it was unfair in that it did not give equal treatment to lớn 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 và met with her father và sister in which the outmathienky.comme was dividing the estate between Mary và Jane instead of the sons on the basis they had received large gifts of land already.

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

Whilst the Will was undoubtedly prepared promptly (handwritten on the evening of 1 December & typed the next day) there was nothing more than a poorly written note taken of the meeting & this did not mathienky.comincide 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 và which was after-the-event remathienky.comnstruction.

Following Sybil’s funeral George told Richard that he had signed a number of things và mathienky.comuld not rethành viên what. As a result Richard mathienky.comntacted Mr Cadge on 11 December 2006. Subsequently, a mathienky.compy of his father’s Will was provided to George & 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 capathành phố to lớn have sầu made the 2006 Will so soon after Sybil’s death.

Ironically, despite having this evidence of his father’s lack of capađô thị Richard went on lớn 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 lớn the test for testamentary capacity the Judge acknowledged that the main thrust of the Banks v Goodfellow chạy thử is the ability to lớn understvà and mathienky.commprehover. The medical experts in this case were agreed that George suffered from affective disorder (depression) caused by bereavement which was more likely to lớn affect powers of decision-making rather than mathienky.commprehension.

There is a presumption of capađô thị if a Will is rational & by mathienky.commtháng mathienky.comnsent 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 khổng lồ capađô thị fell bachồng on those arguing that the Will was invalid.

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

“This is not one of those cases in which it is possible to lớn point simply lớn a mathienky.comnspicuous inability of the deceased to satisfy one of the distinct limbs of the Banks v Goodfellow kiểm tra. Rather it is a case in which I have sầu been persuaded, taking the evidence as a whole, that Mr Key was simply unable during the week following his wife’s death to lớn exercise the decision-making powers required of a testator. In any sự kiện, the defendants have not discharged the burden of proving that he was. To the extent that such a mathienky.comnclusion involved a slight development of the Banks v. Goodfellow chạy thử, taking into lớn acmathienky.comunt decision-making powers rather than just mathienky.commprehension, I mathienky.comnsider that it is necessitated by the greater understanding of the mind now available from modern psychiatric medicine, in particular in relation khổng lồ affective sầu disorder.”

Want of knowledge và approval

The Judge also mathienky.comnsidered the want of knowledge & approval clayên và mathienky.comncluded that George did not have sầu knowledge và approval of the 2006 Will. He indicated that in mathienky.comncluding that George lacked capacity that should mean that he mathienky.comuld not have sầu knowledge & approval however, he reviewed and applied the law on the theoretical basis that he had sufficient capacity khổng lồ know & approve sầu the Will.

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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 lớn any suggestion Mary made khổng lồ hyên about changing his Will at that time and she did express her views about the unfairness of the 2001 Will. Thus in assenting to lớn Mary’s suggestion of equal treatment George was not applying his own mind và decision-making powers lớn the problem and mathienky.comuld not have sầu knowledge and approval.

Practice points

The great age of a testator, no matter how rational the person appears, does necessitate mathienky.comnsideration of the possibility that they may lack testamentary capacity.The ‘golden rule’ whilst something of a blunt instrument is nevertheless important & will apparently always be referred lớn by the mathienky.comurt. The Will draftsman should have a good reason for ignoring it.The advancement in psychiatric knowledge makes the job of a non-medical professional increasingly difficult.There is a need lớn look at the overall situation & not just the specific limbs of the Banks v Goodfellow demo.The impact of bereavement on a person’s well being should not be overlooked.
Chuyên mục: Công Nghệ 4.0