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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Key & Anor v Key & Ors  EWHC 408 (Ch) (05 March 2010)
Cite as:  WLR 2020,  WTLR 623,  EWHC 408 (Ch),  1 WLR 2020
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Strand, London, WC2A 2LL
B e f o r e :
| IN THE ESTATE OF GEORGE DOUGLAS KEY (DECEASED)
(1) RICHARD GEORGE FREDERICK KEY
(2) JOHN DOUGLAS KEY
|- and -
JANE FRANCES KEY
MARY ELLEN BOYKIN
VICTOR FREDERICK MORGAN
JAMES WILLIAM HUGH COCKS
Mr John Ross Martyn (instructed by Cadge & Gilbert, 9 High Street, Loddon NR14 6EU) for the Defendants
Hearing dates: 18th – 22nd February 2010
Crown Copyright ©
Mr Justice Briggs :
The Golden Rule
The Family Witnesses
"E (meaning examination) bereavement wife of 65 years died this week.
S (meaning symptoms) "I'm not going to be here in two weeks".
Desperate, not sleeping, daughter staying – lives in USA.
P (meaning prescription) discussed medical issues.
NB – needs full social care package,
I think he is high risk as he was so dependent on his wife."
"I am unable to provide an expert opinion as to whether he has the mental capacity to make a valid will. However, I would make two observations in this area. Firstly, that he has been noted to have memory related problems for some months, first noted by his wife in terms of a reduction in his short term memory. Secondly, he was clearly devastated by his wife's death and I have seen him several times in this bereavement period, the first being on 1st December 2006 when 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."
Exors son-in-law Victor Morgan of the Old Workhouse Oulton Norwich
Timothy Cox of
Legacy of £7500
The Meadow to R&J
The House & buildings to such of my daughters equally
The furniture & Furnishings & Personal Effects equally between Children."
"TO MY EXECUTORS AND MY CHILDREN
I have made my Will trying to be fair to my four children and, bearing in mind that in 1992 I gave to Richard and John approximately 100 acres of farmland each, I have valued each of these gifts at £300,000 on current values and the legacies I now give to my daughters are to balance those previous gifts made to my sons so far is possible.
In the unlikely event of the Capital Taxes Office claiming IHT on the value on those gifts, it would only be fair if my sons were reimbursed such IHT liabilities prior to any distribution, including legacies, under Clause 5 of this my Will and I would hope that my daughters would honour this hope"
i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity.
ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.
iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.
See Generally Ledger v. Wootton  EWHC 2599 (Ch) per HHJ Norris QC at paragraph 5.
"… the protection of the law is in no cases more needed, than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially where that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration."
i) At the time of his examination of Mr Key in April 2007, he was disorientated in time, place and person. He was paranoid, and suffered both episodic and semantic memory disturbances. He was unable to give a clear account of himself, nor was he able to demonstrate a capacity for managing his affairs with regard to his business interests or indeed the day to day running of his home. He appeared to have lost all interest in matters which might be expected to concern a man living on his own. He tended to refer questions to be answered by Richard (who was present), and became briefly aggressive in response (in Dr Hughes' view) to being embarrassed and ashamed of being faced with a simple question which he could not answer.
ii) Dr Hughes could not conceive, in the light of his examination of Mr Key in April 2007, that he could have deteriorated so fast to the state in which he found him, from a state in which he had testamentary capacity immediately after his wife's death, in the previous December. This was because, first, in his view it was Mr Key's bereavement that was primarily responsible for his impaired mental capacity, which was therefore unlikely to have been less serious in its effect then, a week after her death, than four months later. Secondly, his cognitive impairment was of a kind and probable cause which did not suggest marked deterioration during that period.
iii) Dr Hughes noted that Mr Key appeared initially to present himself in a way that, for a time, partly concealed his underlying difficulties, a factor which may in my judgment have contributed to Mr Cadge's failure to discern seriously impaired mental capacity when meeting Mr Key in December.
iv) Dr Hughes was reinforced in his opinion by paying due regard to the recorded contemporaneous observations of Dr Duthie.
KNOWLEDGE AND APPROVAL
i) As with testamentary capacity, due execution of an apparently rational and fair will, will ordinarily satisfy the burden of proof on the propounder, unless there are circumstances which excite the suspicion of the court.
ii) In such a case, the propounder may be required affirmatively to prove knowledge and approval. This is an evidential rather than legal burden.
iii) The standard of proof is, as is in all civil proceedings, that of the balance of probabilities. Nonetheless the task of satisfying that standard will generally vary in proportion to the degree of suspicion engendered by the circumstances.