Bereavement and Testamentary Capacity

May 15, 2012 Hull & Hull LLP Estate & Trust Tags: , 0 Comments

In Key v. Key [2010] EWHC 408 (Ch), a Will made by a British widower shortly after his wife’s death in 2006 was challenged. The drafting solicitor’s attendance was arranged by one of the testator’s two daughters, who had discovered that her father’s 2001 Will favoured his two sons. The Court found 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, the daughter drove the testator to a lawyer’s office to make a new will.  

The Judge considered evidence from two expert psychiatrists, family members, neighbours, and the drafting lawyer. The psychiatrists agreed that the testator was suffering from cognitive impairment, possibly a precursor to dementia. 

Witnesses who saw the testator in the weeks following his wife’s death described him as "devastated" and "having taken a turn for the worse, mentally and emotionally." 

The Judge found that capacity is not determined solely by whether the deceased had the mental capacity to understand 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 aving the mental energy to make any decisions of his own about whom to benefit.”

The Court accepted expert evidence that bereavement can impede concentration, attention, and the ability to  retain information. Depression caused by bereavement could exhibit symptoms similar to dementia.


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