Key v Key [2010] EWHC 408 (Ch)

Successful challenge to will on the grounds of want of testamentary capacity and want of knowledge and approval.


The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  


PROBATE — Will — Testamentary capacity — Effect of bereavement on mind of testator — Whether testator having requisite decision-making capacity — Whether having testamentary capacity


Although affective disorder such as depression, including that caused by bereavement, was more likely to affect powers of decision-making than comprehension, the effect of bereavement on a testator’s mind was a factor to be taken into account when deciding whether he had capacity to make a will and was capable of impairing testamentary capacity.

Briggs J so held in the Chancery Division when granting the declaration sought by the claimants, Richard George Frederick Key and John Douglas Key, that the will made in December 2006 by their late father, George Douglas Key, ought not to be admitted to probate because he had lacked testamentary capacity. The claim was defended by the testator’s’ daughters, Jane Frances Key and Mary Ellen Boykin. Two of the three executors named in the 2006 will, Victor Frederick Morgan and James Cocks, were joined as defendants but took no active part in the proceedings.

BRIGGS J said that contrary to the clearest guidance the defendants’ solicitor had accepted instructions for the preparation of the 2006 will from the 89-year-old testator, whose wife of 65 years had been dead for only a week, without taking any proper steps to satisfy himself of the testator’s testamentary capacity. Without detracting from the continuing authority of Banks v Goodfellow (1870) LR 5 QB 549 it had to be recognised that psychiatric medicine had come a long way since 1870 in recognising an ever widening range of circumstances now regarded as sufficient at least to give rise to a risk of mental disorder, sufficient to deprive a patient of the power of rational decision-making, quite distinctly from old age and infirmity. The mental shock of witnessing an injury to a loved one was an example recognised by the law, and the affective disorder which might be caused by bereavement was an example recognised by psychiatrists. Accordingly, although there was no reported case dealing with the effect of bereavement on testamentary capacity, the Banks v Goodfellow test had to be applied so as to accommodate that, among other factors capable of impairing testamentary capacity, in a way in which perhaps the court would have found difficult to recognise in the 19th century. The test which had emerged from the cases was primarily about the mental capacity to understand or comprehend. The evidence in the present case showed that affective disorder such as depression, including that caused by bereavement, was more likely to affect powers of decision-making than comprehension. A person in that condition might have the capacity to understand what his property was, and even who his relatives and dependants were, without having the mental energy to make any decisions of his own about whom to benefit. His Lordship concluded that the testator had been devastated, rather than merely upset, by his wife’s death and that he had been simply unable during the week following his wife’s death to exercise the decision-making powers required of a testator. 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, it was necessitated by the greater understanding of the mind now available from modern psychiatric medicine, in particular in relation to affective disorder.


[2010] EWHC 408 (Ch)B; [2010] WLR (D) 69

Ch D: Briggs J: 5 March 2010

Appearances: Simon Redmayne (instructed by Barry Ferguson, Norwich) for the claimants; John Ross Martyn (instructed by Cadge & Gilbert, Loddon) for the defendants.

Reported by: Celia Fox, barrister

External link


Case report on ICLR website