There are a number of important cases that we will writers must have an understanding of. Not all law is statute based and many of these cases form the basis of the law that applies to wills.
This article will cover an overview of the facts and decision of Key v Key  EWHC 408 (Ch).
A testator creating a will must have Testamentary Capacity, that is the capacity to execute a will. The test for this is set out in Banks v Goodfellow (1870) LR 5 QB 549. Under this test a testator must:
- Understand the nature of making a will and its effects – this being that the testator must know that they are making a Will to dispose of their assets AFTER they have died. In other words, the testator understands that the Will is to come into effect on their death and not before.
- Understand the extent of the property of which they are disposing – the testator does not need to know the exact value of everything they own but must know the extent of their wealth. For example, be able to give approximate figures of the assets which they own.
- Be able to comprehend and appreciate the claims to which they ought to give effect – they must know who might have first claim on their property. An example could be that the testator is married and therefore the spouse would have claim upon the estate.
- Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.
“The Golden Rule” applies where there is doubt as to a client’s ability to give valid instructions to the will writer. This rule was expressed by Templeman J in Kenward v Adams  ChD 29 and also in Re Simpson  121 SJ 224 and states that when a professional draftsman is drawing up a will for an aged testator, or a testator who has been seriously ill, the making of the will should be “witnessed or approved by a medical practitioner who is satisfied of the capacity and understanding of the testator, and records and preserves his examination of the testator and findings”. The Golden Rule is not a legal rule, but a matter of good practice.
Mr Key (90) died on 20 July 2008, almost two years after the death of his wife. Mr Key and his wife had been married for 65 years before her death. They had four children, two sons who worked on their farm and two daughters. The sons had benefitted from farmland during their lifetime.
One week after Mrs Key’s death in 2006, their family solicitor visited Mr Key to make a new will at the request of one of his daughters and two days later the new 2006 will was signed. His previous will provided a life interest for Mrs Key before dividing equally between his sons. His 2006 will distributed the majority of his estate equally between his daughters and the residue equally between all four children.
The sons challenged the will on the grounds of lack of testamentary capacity and lack of knowledge and approval.
The challenge was successful and it was held that Mr Key did not have testamentary capacity and did not have knowledge and approval of the will.
The solicitor was criticised for not following the Golden Rule and not taking any steps to confirm Mr Key’s testamentary capacity. Neither was an attendance note of the meeting taken. The solicitor did argue that he had seen Mr Key a few months earlier regarding the dissolution of his farming partnership and saw no reason to question capacity.
A key factor considered in the daughter’s favour was the 2006 will’s fairness, which saw an equal treatment of the children considering the lifetime gifts. However this was not enough to ensure Mr Key had capacity and none of Mr Key’s earlier wills divided the estate equally.
The judge decided that Mr Key was ‘devastated’ by the death of his wife. Lack of capacity in this case was caused by the severe effect of his bereavement which was described by one of the experts as capable of effects equivalent to severe depression. It was held that Mr Key was unable to exercise the decision-making powers required of a testator in the week following his wife’s death.