There seems no end to the flood of disputed wills relating to farms. The most recent is Key v Key [2010] EWHC 408 (Ch).

Mr Key died in July 2008, aged 90. His wife had died two years earlier after a 65-year marriage, leaving him devastated. There were four children, two boys who had worked on the farm their whole lives and two daughters who had married and moved away. Mr Key had made a will in 2001 leaving his estate to his wife for life and then to be divided between his two sons. He had, however, dissolved the farming partnership with his sons in 2006 to allow them to take part of the land as their own to farm as separate businesses, retaining the farmhouse, cash and a relatively small amount of land.

Immediately after their mother’s death the daughters returned home and, having discovered that the existing will left them nothing, one daughter requested that a solicitor visit the house to take instructions for a new will. Two days later Mr Key was taken by his daughter to the solicitor’s office where he executed a will which provided for legacies representing the bulk of his estate to his two daughters, with only the residue being divided equally between the four children. This was said to be in the interests of achieving fairness as the sons had already been given farming land. The judge admitted that a powerful factor in favour of the daughters’ case generally was its fairness, to the mind of anyone who regards equal treatment between children as fair treatment. However, none of the deceased’s earlier wills had divided his estate equally.

The sons challenged the will successfully on the grounds of want of testamentary capacity and want of knowledge and approval. Lack of capacity was held to have been caused by the severe effect of bereavement, which was described by one of the medical experts as being capable of producing symptoms equivalent to severe depression.

Mr Justice Briggs expressed regret that the circumstances of the making of the 2006 will and subsequent investigations by the sons had produced mutual suspicion, recrimination and distrust in what had previously been a close and caring family. Sadly he stated that ‘a significant element of responsibility for this tragic state of affairs’ lay with the solicitor who ‘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 satisfy himself of Mr Key’s testamentary capacity, and without even making an attendance note of his meeting’.

However, the solicitor had seen the deceased only a few months earlier in relation to the dissolution of the farming partnership and saw no reason to question his client’s capacity. The reason given for changing the will appeared entirely rational.

The judge also criticised the solicitor for failing to comply with the golden rule, the substance of which is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings.

Practitioners will know that there are often practical difficulties in complying with this rule, but Mr Justice Briggs said that the failure to comply with it had ‘greatly increased the difficulties to which this dispute has given rise’. Compliance with the golden rule does not guarantee the validity of a will, nor does non-compliance demonstrate its invalidity. What compliance does is to provide contemporaneous medical evidence which may assist in the avoidance of disputes, or at least in the minimisation of their scope. It is, however, vital that a medical practitioner who is asked to express an opinion on testamentary capacity is provided with a proper description of the legal test for testamentary capacity.

Some points made in the case will be familiar to those who deal regularly with probate disputes:

  • there were two medical experts. The daughters’ expert was more experienced and his expertise was more focused upon the psychiatric problems of the elderly. The sons’ expert was less experienced in that area but had examined the deceased during his lifetime. In the judge’s opinion this advantage outweighed what would otherwise have been the greater weight to be attributed to the daughters’ expert’s experience and specialisation;
  • the symptomatic effect of bereavement as capable of being almost identical to that associated with severe depression. The Banks v Goodfellow test must be applied to accommodate this, among other factors capable of impairing testamentary capacity; and
  • mental disorder may not be apparent to non-medical professionals.

RSPCA in the doghouseReaders may also be interested in the case of RSPCA v Sharp [2010] EWHC 268 (Ch), where Mr Justice Peter Smith criticised the RSPCA for challenging the construction of a will, describing their argument as ‘clearly wrong’.

The deceased had left his house (worth £169,000) to his lifelong friends, with inheritance tax (IHT), if any, to be paid from residue. He left a pecuniary legacy to be divided between the friends and his brother of an amount which at his death equalled ‘the maximum which I can give by my will without inheritance tax becoming payable in respect of this gift’. The residue was left to the RSPCA.

The issue in dispute was how much should pass under the pecuniary legacy. The judge held that it passed an amount equal to the nil-rate band in force at the death (£300,000), which meant that tax was payable on the value of the house grossed up and the RSPCA took only what was left. The charity had contended that the legacy should only have been the balance remaining of the nil-rate band after deducting the value of the house. No IHT would then have been payable and the residue would have been substantially greater. Many practitioners may feel that the RSPCA’s construction would have been more natural.

Professor Lesley King, College of Law