England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/03/2010

Mr Justice Briggs :

INTRODUCTION

1. George Douglas Key of Hall Farm, Mundham, Norfolk, died on 20^th July 2008, two months short of his 91^st birthday. His wife Esme Sybil Key, known to the family as Sybil, died on Monday 27^th November 2006. They had been married for 65 years. They were survived by four children, Richard, Jane, John and Mary, born respectively in 1943, 1944, 1946 and 1953. Mr Key was a farmer, as his father had been. Both Richard and John had spent the whole of their working lives farming with their father and had, by 2006, taken over the running of the family farm from him, and indeed the ownership of the bulk of the farmland. They each lived within walking distance of their father, in the rural hamlet of Mundham, a few miles southeast of Norwich.
2. Mr Key's elder daughter Jane was a university tutor living a short drive away at Oulton near Lowestoft. His younger daughter Mary had moved to the United States of America and married a Mr Charles Boykin in 1990, but paid twice yearly visits to England thereafter, for at least part of which she stayed with her mother and father. She returned home and looked after her father for a few days upon learning of her mother's death. Mr and Mrs Key and all their children were and remained in 2006 a close and caring family.
3. On 4^th December 2006, exactly a week after Sybil's death, Michael Christopher Cadge, a solicitor of Messrs Cadge & Gilbert of Bungay in Suffolk, attended Mr Key at his house, Hall Farm, Mundham at Mary's request, for the purpose of taking instructions upon a new will for Mr Key. Two days later Mr Key was taken by Mary to Cadge & Gilbert's offices in Bungay where, in the presence of Mr Cadge and an office secretary, he duly executed the new will ("the 2006 Will"). It provided for the bulk of his estate to be divided equally between his two daughters, in sharp contrast with his previous will, dated 18^th December 2001 ("the 2001 Will") by which the bulk of his estate was, subject to life interests in favour of Sybil, to be divided equally between his two sons.
4. In proceedings issued in October 2008 Richard and John have challenged the 2006 Will on the grounds of want of testamentary capacity and want of knowledge and approval. The claim has been vigorously defended by Jane and Mary. Two of the three executors named in the 2006 Will, namely Jane's husband Victor Frederick Morgan and a Mr James Cocks have been joined as defendants but have, very properly, taken no active part in the proceedings other than (in Mr Morgan's case), to give evidence. Richard was the third named executor.
5. Most unfortunately, the circumstances of the making of the 2006 Will, and of the manner in which Mr Key's sons, on learning of it, subsequently investigated his testamentary capacity, have transformed the formerly close relationship between his sons and daughters into one of mutual suspicion, recrimination and distrust, to an extent which has rendered this unfortunate family dispute insoluble other than by way of an expensive three day trial, with evidence from no less than twenty witnesses, eighteen of whom were cross-examined. While this judgment will, subject to any appeal, resolve the legal issue as to the validity of the 2006 Will, I entertain no expectation that it will heal the underlying wounds, however much I would have wished otherwise.

The Golden Rule

6. As will appear, a significant element of responsibility for this tragic state of affairs lies with Mr Cadge. Contrary to the clearest guidance, in well known cases, academic texts and from the Law Society, Mr Cadge 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 with Mr Key and Mary, at which the instructions were taken. Mr Cadge's failure to comply with what has come to be well known in the profession as the Golden Rule has greatly increased the difficulties to which this dispute has given rise and aggravated the depths of mistrust into which his client's children have subsequently fallen.
7. The substance of the Golden Rule 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: see Kenward v. Adams (1975) Times 29^th November 1975; Re Simpson (1977) 121 SJ 224, in both cases per Templeman J, and subsequently approved in Buckenhan v. Dickinson [2000] WTLR 1083, Hoff v. Atherton [2005] WTLR 99, Cattermole v. Prisk [2006] 1 FLR 697, and in Scammell v. Farmer [2008] EWHC 1100 (Ch), at paragraphs 117 to 123.
8. Compliance with the Golden Rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope. As the expert evidence in the present case confirms, persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.

THE EVIDENCE

9. The issues in this case turn almost entirely on oral evidence. The only significantly relevant documents consist of Mr Key's previous wills, made in 1962, 1967, 1996 and 2001, the 2006 Will itself, together with a manuscript draft of it prepared by Mr Cadge, and a scrappy, undated, but earlier note of his, and notes of home visits made by Mr Key's GP, Dr Alasdair Duthie, including a visit on 1^st December 2006.
10. Most of the relevant background to the making of the 2006 Will, including the lifetime gifts previously made by Mr Key to his sons, is common ground. I turn therefore to the twenty witnesses, who may be conveniently divided into four categories, namely (1) experts (2) members of Mr Key's family (3) neighbours and (4) Mr Cadge.

The Experts

11. The claimants called Dr William Hughes FRCPsych. He qualified in Medicine in 1968, and worked as a consultant psychiatrist and psychotherapist within the National Health Service from 1980 until 2000, as well as being, at various times, Clinical Tutor in Psychiatry, Clinical Director and Medical Director, to the Norfolk Mental Healthcare NHS Trust as well as an Honorary Senior Lecturer at the University of East Anglia. He specialised for many years in the field of complex trauma and disassociation, and his career included treating many people suffering from psychosomatic disorders, personality disorders, neurotic and psychotic disorders of the mind.
12. Dr Hughes had the considerable advantage of having personally carried out a psychiatric examination of Mr Key on 30^th April 2007 at Hall Farm. As will appear, the reliability of that examination may have been a little undermined by its having been conducted by Dr Hughes under the misapprehension that he had been instructed to carry it out by Mr Key's solicitor, and therefore at Mr Key's own request, whereas in fact it had been arranged by Richard with the assistance of a solicitor, a Mr Ferguson, acting for him, rather than for his father.
13. Dr Hughes had not given expert evidence before. Nonetheless he demonstrated a proper understanding of his duties to the court, and it was not suggested, nor could I detect, that he suffered from any lack of independence or objectivity. I found him to be an articulate, helpful and reliable witness, as his long and distinguished career would have led me to expect.
14. The defendants called Professor Robin Jacoby FRCPsych, Professor Emeritus of Old Age Psychiatry at the University of Oxford. His medical career began in 1971, and he was a consultant psychiatrist between 1980 and 1993, for most of that time at the Bethlem Royal and Maudsley Hospitals in London. He was appointed Clinical Reader in Old Age Psychiatry at the University of Oxford in 1994, and Professor of Old Age Psychiatry in 1998.
15. Unlike Dr Hughes, Professor Jacoby has considerable experience in giving expert evidence, including reports and oral evidence about testamentary capacity. Furthermore, his specialisation has been more focused upon the psychiatric problems of persons of advanced years than that of Dr Hughes. He was therefore a little better qualified both by experience and specialisation than Dr Hughes in giving expert evidence as to Mr Key's testamentary capacity, although he lacked Dr Hughes' important opportunity to conduct his own psychiatric examination of Mr Key. His conclusions were therefore necessarily more tentative than those of his colleague. Nonetheless his assistance to the court, in particular in describing the interrelationship between dementia and affective disorder, such as may be caused by bereavement, was of real value.
16. There was a large measure of agreement between Dr Hughes and Professor Jacoby, as was recorded in their helpful joint statement, and as manifested during cross-examination. In my judgment Dr Hughes' advantage in having conducted his own (albeit after the event) psychiatric examination of Mr Key was, notwithstanding the shortcomings of the manner in which he was instructed, sufficient to outweigh what would otherwise have been the greater weight to be attributed to Professor Jacoby's experience and specialisation, in relation to those matters about which they disagreed.

The Family Witnesses

17. Witness statements, supplemented and tested in cross-examination were provided by Richard, Jane and Mary, by Richard's wife Margaret and Jane's husband Mr Morgan, as well as by Richard's son Dr Wesley Key and by John's son Simon. John did not himself give evidence due to illness.
18. Putting on one side for the moment Mary and Jane, because of their central importance in the relevant events, I am satisfied that the other family witnesses did their best to tell the court the truth as they saw it. They all had considerable opportunities to form layman's views about Mr Key's mental state both during late 2006 and for the remainder of his life. The reliability of their widely differing views on that subject was, I think unconsciously, seriously undermined by the inevitable partiality which has arisen from the splitting of the family into two armed camps and, although to a lesser extent, by their direct or (for most of them) indirect financial interest in the outcome of this litigation. All the family witnesses (and for this purpose I include Jane and Mary as well) tried with varying degrees of success to control their obviously powerful emotions about the perceived iniquities of their opponents. On the whole, those on the defendants' side did so with greater success than those on the claimants' side. In particular Richard allowed his suspicions about his sisters' conduct seriously to interfere with his objectivity. Nonetheless, taken as a whole, I was unable to place unquestioning reliance on the evidence of the family witnesses, still less to conclude that the evidence of one or more of them ought in general to be preferred over that of the others.
19. Jane and Mary call for particular attention, because it was they who shared the main burden of the task of looking after their father during the two weeks immediately following Sybil's death. They were the main beneficiaries under the 2006 Will, made during that period, and the objects of an ineradicable suspicion in the minds of the claimants' side of the family that they had orchestrated the making of that Will by wholly inappropriate and self-serving measures.
20. Jane Key came across as a witness with a detailed and precise memory, both orally and in her witness statement in which, in particular, she gave detailed particulars by way of examples in support of her view that her father retained a sufficient mental capacity long after December 2006, as observed by her when regularly looking after him, particularly on Sundays.
21. Against that, her witness statement provided no description at all of two matters about which it might have been expected that she would have assisted the court, namely her father's mental condition during the period immediately following Sybil's death, and communications between her and her sister about his intentions, during that period, with regard to the making of the 2006 Will. When cross-examined about this omission, she provided no persuasive explanation, sufficient to dispel a suspicion that she had either consciously omitted those matters or, perhaps unconsciously, suppressed her recollection of them. As to the first of those matters, I received no significant assistance beyond her comment (in paragraph 5 of her witness statement) that she could find no evidence to support Dr Hughes' assertion that Mr Key was "devastated" or "severely traumatised" by Sybil's death except, in cross-examination, that she disagreed with it. As to the second, she did provide some evidence in cross-examination of discussion between herself and her sister between 1^st and 3^rd December 2006 about her father's intentions with regard to a new will, to which I shall return.
22. All in all, Jane's reticence about the matters central to the issues in this litigation detracted substantially from her reliability as a witness. Coupled with her substantial financial interest in the outcome of the litigation, I found it therefore necessary to treat her evidence with considerable caution.
23. Mary Boykin came across as a highly articulate person of obvious intelligence and, above all, as someone with very strong views, coupled with a forceful and determined personality, characteristics which, when put to her, she did not dispute. There was documentary evidence of her disposition to express her views with the utmost forthrightness when she judged that the occasion called for it.
24. In her witness statement, she was not significantly more forthcoming than her sister about the effect on her father of Sybil's death. For the whole of the period from 30^th November until after the execution of the Will on 6^th December she was best placed to observe that effect, having been living at Hall Farm throughout and caring for her father. She confined herself to the rather formulaic observations that, in relation to the 2006 Will, her father was "in full command of his faculties at all stages in this process" and that he "seemed to me to perfectly understand what he was doing and the consequences of the arrangements he was making".
25. More seriously, Mary turned out to have, at the very least, an unreliable memory, in relation to the occasion when instructions was given to Mr Cadge for the 2006 Will. In her witness statement she described her "clear recollection of what was inevitably an important discussion" as having occurred on the evening of Friday 1^st December when Mr Cadge delivered both her late mother's and her father's wills to Hall Farm. It became clear at the trial that no such three-cornered discussion occurred on that evening and, for reasons which I shall in due course explain in detail, I was left with no evidence at all from Mary as to the occasion or occasions when, prior to 4^th December (when a meeting and discussion between herself, her father and Mr Cadge did occur) she discussed privately with her father the making of a new will. As I shall later explain, such a discussion or discussions undoubtedly must have occurred.
26. I have after anxious thought concluded that I should acquit Mary Boykin of any intention deliberately to conceal relevant matters from the court, or actively to mislead. Nonetheless, her capacity to mis-recall events suggests a real susceptibility on her part to becoming unconsciously convinced of a recollection of matters different from the truth, which leaves me unable to place reliance on her uncorroborated evidence, or upon her trenchant denial that she was anything other than an interested bystander in the process by which the 2006 Will came to be made. I also consider that her undoubted force of personality probably blinded her to the vulnerability and suggestibility of her father in relation to what she no doubt regarded as the very unfair terms of his 2001 Will, when she saw it for the first time on the evening of 1^st December 2006.

The Neighbours

27. No less than eight of Mr Key's neighbours gave evidence of their observations of his apparent mental condition during the last few years of his life. They included the local parish priest Reverend Robson, Mr Key's gardener Mr Winterton, his domestic cleaner Mrs Frost, two local shopkeepers, Mr Todd and Mr Turner, two public house proprietors Mrs Shaw and Mr Roper, and two friends, Mr Webb and Mr Chubbock (neither of whom, in the event, gave oral evidence). In addition, the defendants also called Mrs Ritchie, a longstanding friend of Mary and, to a lesser extent, Mr and Mrs Key, who although not a neighbour stayed at Hall Farm from 6^th to 9^th December 2006, and who took Mr Key out for trips on two occasions in 2007.
28. I have no doubt that all these witnesses did their best to assist the court, but their evidence provided a broad spectrum of different views as to Mr Key's mental powers in and after December 2006. They ranged between, on the one hand, a view that he was, from as early as April 2006, suffering from "advanced Alzheimer's Disease" (Mr Winterton) to a view that he was "the same George that I had known" and fully aware of what was going on around him (Mrs Ritchie). No clear or consistent picture of Mr Key emerged. This is not, in my experience, entirely surprising. It commonly happens that witnesses called to describe their perception of an elderly testator's mental condition during his final years provide widely differing views. This may be because, as frequently happens, old people have good days and bad days, and because they conserve their energies (and in particular their mental energies) for particular occasions. Needless to say, none of the neighbours whose evidence I received had any training in the diagnosis of mental illness. As will appear, the particular features of Mr Key's mental infirmities were by no means immediately apparent, even to a skilled onlooker, as Dr Hughes' evidence clearly demonstrated.

Mr Cadge

29. Mr Cadge became an articled clerk at Cadge & Gilbert as long ago as 1957. He retired as a full time partner from the firm's Loddon office in May 1996, since when he acted as a consultant at the firm's Bungay office. His honesty and integrity as a witness was unchallenged. He provided his evidence first, in the form of a Larke v. Nugus statement, requested before Mr Key's death by Mr Ferguson acting for Richard, but signed and dated November 2008. I infer from correspondence that Mr Cadge may have embarked upon that statement in late 2007, within a year of the making of the 2006 Will. Nonetheless, as was apparent from a supplementary statement, and from cross-examination, Mr Cadge had no more reliable a memory than Mary Boykin. He mis-recalled the dates upon which he was first consulted and upon which he took instructions for the Will, and he purported to recall Jane as having been present when instructions were taken when, as is now common ground, she was not. He took no attendance note of that meeting from which he could refresh his memory.
30. I bear in mind also that although Mr Cadge displayed no visible partiality when giving evidence, he must have appreciated that the claims being made in these proceedings would, if upheld, be likely to reflect very poorly upon his professional competence. In my judgment that factor may, unconsciously, have caused him to have a rather more positive recollection of Mr Key's apparent mental ability and participation in the making of his Will than was truly the case. On any view, the inaccuracies in Mr Cadge's recollection mean that I have not been able to place unquestioning reliance on his evidence as providing a complete and accurate account of what took place in connection with the making of the 2006 Will.

THE FACTS

31. Mr Key spent all his life as a farmer, and inherited from his father a holding consisting of three small farms, Hall Farm, White House Farm and Abbey Farm. He employed his sons Richard and John in the farming business and in about 1972 the three of them entered into a farming partnership together. Having given each of them a house to live in as a wedding present (in 1965 and 1970 respectively) he gave each of Richard and John 100 acres of farmland in 1996. There had by then been various (I infer tax driven) transactions between them by way of sale which I need not describe in any detail.
32. By 2006, Mr Key had made four previous wills. A common feature of all but the third of them was that his two sons were the principal beneficiaries thereunder, subject to mainly lifetime provision for his wife, and to very modest gifts to his daughters.
33. The third will dated 4^th December 1996 followed closely upon his gift of 100 acres of farmland to each of his sons. By it, he gave his wife certain chattels, £15,000 to Jane and £5,000 plus Hall Farm to Mary, subject to a right for his wife to live there for her life, and £5,000 to a David Seeley, a longstanding farm employee. The residue was to be held on trust to raise and pay £150 per week to his wife for life, and subject thereto, as to income and capital to his sons in equal shares.
34. By the fourth will, dated 18^th December 2001 he left his wife his car, the contents of Hall Farm and £15,000, £10,000 to Jane and £5,000 to each of Mary and David Seeley. He left Hall Farm to his sons in equal shares subject to the same right for Sybil to live there for life, and the residue to his sons, subject to the same provision for £150 per week to his wife for life.
35. In February 2006 Mr Key and his sons dissolved their farming partnership by an agreement which, in practical terms, left each of Richard and John with separate farming businesses on separate land. It is common ground that, by December 2006, Mr Key's assets consisted of the farmhouse and farm buildings, together with a garden and adjacent land at Hall Farm, a meadow known as Low Meadow of about 7 or 8 acres, cash at bank (the evidence did not clearly reveal how much) and modest personal chattels including the contents of Hall Farm and his car. I was told that part of the farm buildings at Hall Farm were still in use by either Richard or John for farming purposes.
36. Until very shortly before Sybil's death, it appears that she and Mr Key were still managing, albeit with increasing difficulty, to look after themselves at Hall Farm. Sybil managed all the domestic arrangements, Mr Key having never been able, as Mary put it, even to make himself a cup of coffee. For his part, Mr Key appears (whether safely or not) still to have been driving very short distances in daylight, for example to local shops, although by late 2006 the deterioration in his short-term memory had led to his being frequently unable to remember, on arrival at the shop, what it was that he was meant to buy, a problem which Sybil circumvented by telephoning the shopkeeper while Mr Key was on the way. It is evident from the notes taken of home visits by Dr Duthie, Mr Key's GP, that by October 2006 Mr Key's short-term memory problems had become sufficiently serious for Sybil to think it sensible to tell the Doctor about them.
37. Mr Key was nonetheless by no means beyond enjoying life, in particular at local pubs, including the George and Dragon in Thurton (at least until April 2006 when Mrs Shaw left it) at the King's Head in Loddon and at the Dove in Poring land at which Mr Roper was the landlord. His visits usually included drinking a couple of pints of beer and playing a game of poker dice. He also had two small dogs to which, by all accounts, he was devoted.
38. Dr Hughes and Professor Jacoby were agreed that, prior to Sybil's death, Mr Key was already affected by an element of cognitive impairment, which Dr Hughes described as the early signs of a dementing illness. Professor Jacoby described it as a mild cognitive impairment, and a possible precursor of dementia. Neither of them suggested that, on its own, this had deprived him of testamentary capacity before his wife died. Its main symptom was the progressive deterioration of his short-term memory, which manifested itself in the difficulties at shops which I have described, and occasionally in more serious ways, such as his inability to get out of his car, due (according to Mr Winterton his gardener) to his inability to remember where he had put the key, or otherwise how to unlock the doors from the inside.
39. Sybil died on Monday 27^th November after a very short stay in a nursing home, attended by Jane. It was, initially at least, she who took upon herself the brunt of looking after her father at Hall Farm, until her sister Mary arrived from the USA on 30^th November, whereupon Jane went back to work, leaving Mary in sole charge of her father's care. A central issue in the case is the effect upon Mr Key's mental condition of his bereavement. It appears that Mr Key had little or no advance warning of his wife's impending demise. As late as the day she died, a Dr Barrie wrote to the matron at the nursing home in terms which, after he had examined Sybil, suggesting that she needed no more than enforced bed rest before returning home, and more care at home thereafter. It appears therefore that her death came as a complete shock to Mr Key. Quite apart from the emotional effect of the sudden loss of his wife after 65 years marriage, he had become (and had probably always been) completely dependent upon her for his ordinary daily domestic requirements. It is common ground that he felt himself unable to cope emotionally (rather than physically) with the ordeal of attending his wife's funeral which took place on 7^th December. The parish priest Reverend Robson visited Hall Farm, probably on 30^th November, for the purposes of discussing the funeral arrangements. Mr Key and all four of his children were there, but Mr Key took no part at all in the discussion, although present. Reverend Robson was told by one of the children that Mr Key was in no position to take part.
40. Save for Jane, Mary and Mr Cadge, the witnesses who saw Mr Key during the short period between his wife's death and the execution of his Will ten days later, described him as having been devastated by her death. They included Richard and his wife Margaret, and his cleaner Mrs Frost. Mr Morgan did not address the issue directly, but in his oral evidence in chief described him as "crying a bit" when he saw him on the Sunday. More generally, several of the other witnesses, who did not see Mr Key during that short period but saw him soon afterwards, described his bereavement as having brought about a step-change for the worse in his apparent mental and emotional condition. Those witnesses included Mr Todd, Mrs Shaw, Mr Turner and Mr Chubbock, and Reverend Robson, who made a pastoral visit to Mr Key on 20^th December. The general impression created by that evidence was that Mr Key was experiencing real difficulty even in recognising that his wife had died, rather than having become temporarily absent.
41. Against that, neither Jane nor Mary volunteered any evidence of their own about their father's reaction to their mother's death. On cross-examination they acknowledged, of course, that he was upset, but denied that his condition was properly described as that of someone who had been devastated.
42. To a similar effect was the evidence of Mrs Ritchie, who stayed at Hall Farm from 6^th to 9^th December 2006. Her evidence was that "he was sad to lose his wife but he was the same George that I had known" and that at no time during that period did Mr Key not know what was going on around him. Finally, Mr Cadge's evidence was that Mr Key appeared "somewhat subdued" in the circumstances of his wife's death, that he told him that it might have been better if he had died first, but (in cross-examination) that he was the same George Key that he had met six months previously, when dealing with the dissolution of the farming partnership.
43. Dr Duthie made a home visit to Mr Key on 1^st December. His notes state as follows:

"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."

44. His letter of 1^st March 2007, by way of response to a request for the release of medical information regarding Mr Key's testamentary capacity, stated as follows:

"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 1^st 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."

45. Although Dr Duthie was not called to give evidence, I regard this documentary material as significant corroboration of the evidence of those witnesses who did consider that Mr Key was devastated by his bereavement. Although devastation has no specific legal or medical meaning, Dr Hughes and Professor Jacoby were agreed that Mr Key's bereavement constituted an affective disorder which occurred before the making of the 2006 Will. I shall consider their evidence in more detail when directly addressing the question of testamentary capacity, later in this judgment. It is sufficient at this stage for me to say that on this important issue, I prefer the evidence of those witnesses who said that Mr Key was devastated by his wife's death, over those who described him as merely upset.
46. Jane had prior to her sister's arrival from the USA taken some preliminary steps towards dealing with her late mother's affairs, including going through her possessions at Hall Farm. On Mary's arrival Jane told her that she had not found any will made by their mother. The result was that Mary telephoned Mr Cadge on Friday 1^st December to enquire whether his firm held a copy of any will made by her mother. Mr Cadge told her that she had made a will, and offered to drop it off at Hall Farm on his way home. He also offered to deliver a copy of Mr Key's Will, observing that the death of Mrs Key presented a good opportunity for Mr Key to review his own will. I have tried, but without success, to understand how, without any prior enquiry as to how Mr Key was taking the death of his wife, Mr Cadge could have thought that to be sensible advice to give at that time. In his first witness statement, Mr Cadge made no mention of this episode. He remembered it in time for his corrected witness statement dated 14^th April 2009, but still wrongly recalled it as having occurred on the following Monday. It was however from the outset Mary's recollection that this occurred on the Friday and, under cross-examination, Mr Cadge was disposed to acknowledge that this was so.
47. Mary's written evidence was that, when he arrived on Friday evening, Mr Cadge read out the contents of both wills in the presence of her and her father, and that Mr Key there and then expressed a wish to change his will to be fairer to his daughters. She said that after her offer to leave the room had been declined there then ensued a discussion between the three of them, in sufficient detail to enable Mr Cadge to bring a draft of the will for her father's approval on the following Monday, 4^th December.
48. Mr Cadge, who gave his evidence at trial before Mary, was clear that his initial visit had involved him in nothing more than leaving the two wills at Hall Farm and that no discussion about the substance of any change to the will occurred until his next visit to Hall Farm, i.e. on the following Monday.
49. In her own cross-examination, after hearing Mr Cadge's evidence, Mary watered down her original account of the Friday meeting, suggesting that there was only a preliminary discussion on the Friday about her mother's will and her father's will which, while it included her father expressing a wish to change his will, did not extend to any detail sufficient to enable Mr Cadge to start drafting. Furthermore, she accepted that the detailed discussion about the proposed changes to the will with Mr Cadge only occurred on the Monday, and said that the first occasion when the word 'fair' was used in relation to the proposed changes had been when Mr Cadge used it on the Monday.
50. In my judgment Mr Cadge's evidence on this point is to be preferred, once his confusion as to dates had been sorted out. I find that he did no more on the Friday than deliver the two wills to Hall Farm. He did not read them out in the presence of Mr Key and Mary, nor was there any discussion involving him about any change to Mr Key's will, beyond his earlier advice to Mary, on the telephone, that it would be a good time for Mr Key to review it.
51. I infer however that Mary lost no time in reading both wills once delivered by Mr Cadge and that, on discovering the terms of her father's 2001 Will, she instantly formed the view that they were thoroughly unfair to herself and her sister. This view was entirely understandable for anyone who, like Mary, regarded fair treatment of children as calling for equal treatment.
52. Mary's evidence, to which she adhered firmly in cross-examination, was that there was no discussion between herself and her father about changing his will between Mr Cadge's visit on the Friday and the meeting between the three of them which took place on the Monday evening. Her recollection was that she learned on the Friday while Mr Cadge was present that her father wished to change his will, and that Mr Cadge's return after work on the following Monday was arranged on the Friday. In my judgment the first that Mr Cadge knew of any proposal to change Mr Key's will was when he was telephoned by Mary on the Monday morning with a request that he attend at Hall Farm later that day for that purpose.
53. I find that, contrary to Mary's evidence, there clearly was private discussion between her and her father after she discovered the terms of his 2001 Will. It may have begun as early as the Friday evening. It had certainly reached an advanced stage by teatime on Sunday.
54. My main reason for that conclusion is that both Jane and Mary agreed, under cross-examination, that they had together discussed the main proposed change to their father's will during the course of a visit by Jane and her husband to Hall Farm on Sunday afternoon where they, Mary and Mr Key all had tea together. By main change I mean the substitution of Mr Key's daughters for his sons as the proposed main beneficiaries in his estate, which they both knew consisted principally of Hall Farm itself. It was also not later than teatime on Sunday that Mr Morgan agreed to become an executor under Mr Key's proposed new will, although he had some recollection of having been telephoned about that by Mary on the Friday.
55. Jane was less sure in her evidence than Mary that it was at teatime on Sunday that she first learned that the two of them were to be the main beneficiaries. Taken literally, their evidence under cross-examination suggests that they knew by then of the precise means whereby they were to receive the lion's share of their father's estate, namely in the form of two legacies of £300,000 each. For reasons which I shall shortly explain, I doubt that their expectation was that precise on the Sunday.
56. Since Mary denied that any private conversation took place between herself and her father about changing his will, it is necessary for me to decide so far as I can by inference what occurred in the private discussion between them which must have taken place. I find 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. I find that this proposed change had become, as between Mary and her father, a fait accompli by teatime on Sunday.
57. These findings involve me disbelieving Mary's trenchant assertions that no such discussion took place, and her denial that she was in any way responsible for prompting her father to change his will. I have concluded on balance that Mary's evidence in this respect was the consequence of her having blotted that aspect of the matter from her memory, rather than a deliberate lie. I do not find that Jane had any part in that discussion between Mary and Mr Key, or that Mary told Jane about the circumstances in which, as she probably saw it, Mr Key had, at her bidding, appeared to change his mind.
58. Mary was taken roundly to task in cross-examination about why she kept the proposed change to her father's will secret from her brothers. Her repeated answer was that it involved no hiding on her part, being a matter between her father and Mr Cadge. In response to the inevitable question why she therefore told her sister about the proposed change, she said that, as someone who was to become a beneficiary, Jane needed to know. I do not find that evidence at all convincing. In my judgment Mary kept the proposed change secret from her brothers because she well knew that, if they were to find out, it would cause an unholy row, as in due course it eventually did.
59. Mary telephoned Mr Cadge on the following Monday morning requesting his attendance at Hall Farm for the purpose of making a new will for her father. Mr Cadge duly attended, after work, again on his way home. His only preparation was to make a further copy of Mr Key's 2001 Will. Despite knowing of his client's advanced age and knowing that he had been very recently bereaved, he made no enquiry of Mary, or of anyone else, as to Mr Key's fitness to make a will. He said that he did not know Mr Key's precise age, but I note that his date of birth was clearly stated on an enduring power of attorney which Mr Cadge prepared for him to sign on the following Wednesday, at the same time as executing the 2006 Will. He said that it never occurred to him to obtain medical advice as to Mr Key's testamentary capacity, since he appeared to be the same person he had acted for six months previously. Mr Cadge asked no questions of Mr Key designed to probe his testamentary capacity, for the same reason.
60. Subject to one important difference, Mr Cadge's account of what then occurred changed only in emphasis rather than in substance, as between his first witness statement and his cross-examination. The important difference was his mis-recollection in his first witness statement that Jane had been present throughout, something that he corrected in his supplementary statement. To the extent that his written and oral accounts differ, the summary which follows reflects Mr Cadge's oral evidence.
61. Mr Cadge said that after initial pleasantries, Mr Key told him that he wanted to leave his property to his daughters. Mr Cadge asked him what he meant by his property and whether it included the farmhouse, the buildings and the land. Mr Key replied that it included the farmhouse and the farm buildings, but that Low Meadow was to go to his sons. He said that he wanted to increase the legacy to his former employee and that he then looked at Mr Cadge and asked "now is that fair?"
62. Mr Cadge said that fairness was not a clear cut matter and asked whether he meant equality, to which Mr Key replied yes. Mr Cadge then said that Mr Key had of course given 100 acres to each of his sons and that, if he wanted to treat his children equally, those gifts would have to be taken into account. He was told that this was what Mr Key would like to do.
63. Mr Cadge then 'guesstimated' (as he put it) the value of the farmhouse and buildings, using his experience of many years' involvement in property dealings and his knowledge of the value of his own Norfolk farmhouse. He advised Mr Key of his view that the farmhouse was worth in the region of £400,000 and the buildings £200,000, and that the then value of his two gifts of farmland to his sons was about £300,000 each, on the basis of farmland then being worth about £3,000 per acre.
64. Mr Cadge then advised Mr Key that a gift of the farmhouse and buildings would therefore equate with the then value of the earlier gifts of farmland to his sons. He added that in his view the right way to do it would be to give a £300,000 legacy to each of his daughters. Mr Cadge explained in evidence that he thought that this would then enable any subsequent increase in the value of the farmhouse and buildings to be shared equally between the four children, although he did not explain whether he had taken Mr Key through this analysis. He said that this advice was agreed. Mr Cadge offered to prepare a memorandum to accompany the will, setting out the rationale for the two legacies of £300,000 each, and obtained Mr Key's consent that he should do so.
65. Earlier in his evidence Mr Cadge had summarised the process of taking instructions by saying that he ascertained first what Mr Key wanted in terms of revised gifts, and then discussed executors.
66. The only notes that Mr Cadge made of this interview consisted of the following few lines of manuscript, hastily scribbled on the back of a letter about a wholly unrelated matter for a different client, which was, extraordinarily, produced by way of disclosure only halfway through Mr Cadge's cross-examination. The note was as follows:

"GDK

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."

67. There are a number of curious features about this note. The first is that, by contrast with the order of events described by Mr Cadge in his evidence, it begins rather than ends with details of the executors. Mr Cadge sought to explain this by saying that he made the notes only at the end of the conversation.
68. That explanation merely adds weight to the second curiosity, which is that the note makes no mention at all of the proposed legacies of £300,000 each, with a residuary gift to all four children, as later appeared in the 2006 Will. Furthermore, it says nothing about any instructions reflecting the provisions which are to be found in clause 7 of the 2006 Will, dealing with the consequences of any of his children predeceasing Mr Key, or with a special provision in relation to John's share of residue, designed, so I was told, to ward off any claims from John's estranged wife. These provisions by no means replicated provisions to be found in the 2001 Will. Mr Cadge made no mention of instructions in relation to these provisions in his cross-examination until, when prompted, he said that the special provision in relation to John had been suggested by Mary.
69. A third curiosity in the manuscript notes is that the reference to furniture, furnishings and personal effects did not reflect anything which Mr Cadge said the deceased had told him to do, as he conceded in cross-examination.
70. More generally, Mr Cadge accepted that his manuscript notes were by no means an accurate reflection of what, according to his evidence, he had been instructed to do. He sought to minimise these inconsistencies by saying that he went straight home after the meeting and began working on a full manuscript draft of the new will which, on the following day, he dictated for the purposes of the preparation of a typed draft by his secretary. A copy of Mr Cadge's manuscript draft appeared in the trial bundle, but there was no copy of the first typed draft.
71. Mr Cadge said that he took the typed draft to Hall Farm on the following evening (Tuesday 5^th December) read it out to Mr Key, again in Mary's presence, and obtained Mr Key's approval of it without amendment.
72. Mary took Mr Key into Cadge & Gilbert's Bungay office on the following day, where the will was executed by him, but not in Mary's presence, after it had been read over to him again by Mr Cadge. As executed, the 2006 Will appointed Richard, Victor Morgan and James Cocks as executors and trustees. It gave a legacy of £7,500 to Mr Seeley, his furniture, furnishings and household effects to be divided between his children, and Low Meadow to his sons. His residuary estate (including Hall Farmhouse and the farm buildings) was to be distributed as to legacies of £300,000 each to his daughters, and the remainder (if any) equally between his children. Clause 7 contained gifts over the details of which do not matter, and a trust of John's share (after a legacy of £10,000) for John for life, and thereafter for John's two sons.
73. I must briefly mention two other documents which came into existence during the same process. The first was an enduring power of attorney executed by Mr Key on 6^th December at the same time as the will, in favour of Richard and Jane. Mr Cadge said that he had obtained instructions to do this on the Monday, but I have considerable doubt as to the extent of any active part played by Mr Key, rather than by Mary and Mr Cadge, in that process.
74. Finally, Mr Cadge prepared a memorandum seeking to set out the thinking behind the two legacies of £300,000. His evidence was that he had obtained Mr Key's instructions to prepare such a document on the Monday, read it out in draft to Mr Key on the Tuesday and obtained his approval to it without amendment, but that by accident he omitted to have Mr Key sign it on the Wednesday.
75. The memorandum reads as follows:

"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"

76. Again, the memorandum is a curious document. It begins by putting into Mr Key's own mouth the valuation analysis of the £300,000 legacies which, in his evidence, Mr Cadge says that he rather than Mr Key carried out by way of guesstimate on the previous Monday. Secondly, it attributes to Mr Key an analysis and request in relation to Inheritance Tax, something about which Mr Cadge gave no evidence at all so far as concerns any taking of instructions and which, in my judgment, must have been a pure afterthought of his own. But for his carelessness in failing to arrange for the memorandum to be signed, it would have appeared to constitute signed instructions about matters which, in reality, Mr Key knew nothing at all.
77. For present purposes, the relevance of these aspects of the memorandum are that they disclose a tendency on Mr Cadge's part to attribute to his client matters which were, in truth, his own ideas, a tendency which does nothing to inspire confidence that his evidence constitutes an accurate reflection of the extent of Mr Key's real participation in the preparation of the 2006 Will.
78. More generally, the serious disparities between Mr Cadge's contemporaneous notes taken at the meeting on Monday 4^th December and his written and oral evidence give me real reason to think that his account of that meeting contains a large amount of after-the-event reconstruction, working backwards from the terms of the will itself, rather than from reliable recollection.
79. Mary's written evidence misplaced the contents of the Monday evening meeting as if it had taken place on the previous Friday. In cross-examination she acknowledged that the meeting had in fact taken place on the Monday, but her only fresh evidence about it was that she had been careful not to join in with the discussion, save in relation to the enduring power of attorney. For reasons already given, I have found it difficult to place reliance on her evidence in this regard.
80. For me to attempt detailed findings as to what precisely occurred on Monday 4^th December at the meeting between Mr Key, his daughter and his solicitor would involve going beyond evidence and inference into something little better than conjecture. Nonetheless I make the following findings. First, I am persuaded that Mr Key himself told Mr Cadge that he wished to leave his property to his daughters, and that he then asked him whether that was fair. Secondly, I am just persuaded on balance that Mr Key participated in the decision to increase the legacy to Mr Seeley. It had remained unchanged at £5,000 since 1996 and was long overdue for review in the light of inflation. I consider it probable that it was increased as the result of a round the table discussion after being raised by Mr Cadge by way of enquiry. Thirdly, I think it probable that the decision to give Low Meadow to Mr Key's sons was prompted by Mr Cadge's recollection that it had been the subject of a specific provision as between the two of them in the partnership dissolution agreement, so that to provide otherwise in the new will would be, at the least, inconvenient. Finally, and most importantly, I find that Mr Key's enquiry about fairness was the trigger for Mr Cadge effectively to take over the process, probably with assistance from Mary, and with not much more than monosyllabic assent from Mr Key.
81. I have no doubt as to Mr Cadge's honesty as a witness. As I have said, I consider that, to the extent that his evidence portrayed a greater participation by Mr Key than I have found to be the case, it was the product of unconscious reconstruction on Mr Cadge's part, prompted by guesswork, based on the will as executed, as to the process whereby he had obtained his instructions.
82. Equally, I think it probable that Mr Cadge came away from the meeting on the Monday, and the readings of the will to Mr Key on the Tuesday and the Wednesday, with the impression that his client assented to the will in the form in which it was executed. I find that Mr Cadge was wholly unaware of the gravely deleterious effect upon Mr Key's powers of decision-making constituted by the combined effects of cognitive impairment and the affective disorder caused by his bereavement, about both of which I will have more to say in due course. I also find that Mr Cadge was unaware of the private discussion which had taken place between Mr Key and Mary about changing his will between his visits on Friday 1^st December and the following Monday.
83. A telling measure of Mr Cadge's unawareness of the grave risks which he was running in taking instructions from Mr Key at a meeting attended by a proposed principal beneficiary without any attempt to obtain a professional assessment of his client's testamentary capacity is provided by the following exchange which took place during Mr Cadge's cross-examination. He was invited to read Dr Duthie's letter of 1^st March 2007 (most of which I have quoted above), and asked whether, had he known that Dr Duthie held those views, on 4^th December, he would have taken Mr Key's instructions on the making of a new will. His unhesitatingly reply was that he would have considered it improper to have proceeded.

THE AFTERMATH

84. I can deal briefly with the remaining facts. Mrs Key's funeral took place, in Mr Key's absence, on 7^th December. He stayed at home with his dogs, watched over by a farmhand. On the following day Richard said that Mr Key had asked for his help, saying that he had signed a lot of things and didn't know what he had done. Richard's evidence is supported by a diary note of his for that day. Whatever precisely was said, it led Richard to make enquiries of Mr Cadge on 11^th December, followed up by a meeting with him, at which Richard's son Wesley was also present, on 19^th December. At that meeting, which had been called for another purpose, Mr Cadge responded to Richard's enquiry by saying that his father had made a new will, but he understandably declined to reveal its contents. A Cadge & Gilbert internal office memorandum dated 20^th December shows that Richard telephoned to leave a message for Mr Cadge on that day that his father would like a copy of his will. Mr Cadge had not by that stage provided Mr Key with a copy, but duly complied with that request. By that means Richard and (I infer) his brother and their sons became aware for the first time of the terms of the 2006 Will.
85. Their response was to instruct Mr Ferguson, who when earlier employed by Cadge & Gilbert, and had been responsible for the preparation of Mr Key's 2001 Will. They took steps to ascertain first from Dr Duthie and thereafter with the assistance of Dr Hughes whether Mr Key had testamentary capacity. This led to Dr Duthie's letter of 1^st March to Mr Ferguson, and to Dr Hughes' examination of Mr Key, on the instructions of Richard and Mr Ferguson, on 30^th April 2007. Dr Hughes made an initial written report to Mr Ferguson by letter dated 14^th May 2007, from which it is apparent that his instruction, at that stage, was to examine Mr Key and make an assessment of his medical capacity generally, including but not limited to testamentary capacity. He concluded without hesitation with an opinion that Mr Key did not have the requisite testamentary capacity to have made a will soon after his wife's death. It is evident from that letter that Dr Hughes had access to Mr Key's GP's records. I shall return to describe in more detail Dr Hughes' findings when directly addressing the issue of testamentary capacity.
86. A curious feature of the case, much relied upon by the defendants, is that, notwithstanding Richard and (I infer) John's growing disbelief that their father had the requisite mental capacity to enable him to dispose of his property, they both participated on 14^th March 2007 in a Deed of Variation of their mother's will, to which Mr Key and their sisters were also parties, by which Mr Key relinquished his life interest in Sybil's modest estate so that it could immediately be divided between the four children as residuary beneficiaries. Mr Cadge and his firm drafted and supervised the execution of this document by, among others, Mr Key.
87. Richard was, unsurprisingly, pressed with this in cross-examination. His response was that the involvement of his father, despite being deficient in his mental capacity, in a tax saving transaction approved of by all the family was, to his mind, unobjectionable, in stark contrast with what he regarded as the conduct of his sisters, behind their brothers' backs, in December 2006.
88. Mr Cadge arranged for Mr Key to sign a further enduring power of attorney on 20^th July 2007 because, according to him, the EPA signed on 6^th December 2006 had temporarily gone missing, and Richard wanted a copy of it which he was unable to provide. He said that he gave it to Richard after Mr Key had signed it. Again, Richard said that he regarded this exercise as unobjectionable, even though he thought that his father lacked the requisite mental capacity to sign an EPA, because it merely formalised arrangements already in place whereby he and Jane shared responsibility for the management of their father's affairs.
89. This further EPA must have been shown to Mr Ferguson, because on 25^th July 2007 he wrote on behalf of Richard to Mr Cadge raising for the first time the issue as to Mr Key's testamentary capacity, and suggesting that assistance in the management of Mr Key's affairs thereafter should follow the appointment of a receiver by the Court of Protection.
90. Richard was also cross-examined about having arranged for his father to sign cheques for the purpose of making modest lifetime gifts to each of his children in March 2007. His response was that, by then, his father would sign anything placed in front of him, and that, although he could not recall the episode, the making of those gifts might have had something to do with saving tax.
91. Notwithstanding the prima facie impression to be gained from the Deed of Variation, the July 2007 EPA and the cheque signing, I am not persuaded that any of those episodes demonstrated that Richard believed during 2007 that his father was mentally capable of handling his own affairs, or disposing of his own property. In any event, my conclusions as to Mr Key's testamentary capacity in December 2006 are not to any significant extent based upon Richard's views about the matter. Nor, for the reasons already given, have I placed weight upon Richard's evidence as to his observations of his father's behaviour in December 2006 or thereafter. My conclusions as to Mr Key's behaviour are more firmly based upon the broad consensus of the independent witnesses who saw Mr Key soon after his wife's death, corroborated as their evidence has been by Dr Duthie's contemporaneous note of his visit on 1^st December 2006, as amplified by his letter dated 1^st March 2007.
92. Nor have I accepted as true Richard's allegation that his sisters deceitfully conspired behind his back to force his father to change his will in their favour, although I do not doubt that Richard had persuaded himself by the time he gave evidence that this was so. The depth of suspicion and mistrust engendered in Richard's mind and, quite possibly, the minds of all those on his side of the family dispute by the events which I have described even went so far as to lead him to suggest that his sisters had plied his father with spirits and increased his dosage of sleeping tablets so as to render him amenable to their scheme. Regardless whether Mr Key's dose of sleeping tablets was increased (and I can well understand why, after his wife's death, it might have been) I unhesitatingly reject that allegation.

TESTAMENTARY CAPACITY

93. There was no significant dispute between counsel as to the relevant legal principles, which are well settled and continue to derive from Banks v. Goodfellow (1870) LR 5QB 549. The testator must be able (1) to understand the nature of his act, i.e. making a will, and its effects (2) to understand the extent of the property of which he is disposing (3) to comprehend and appreciate the claims to which he ought to give effect. He must not be subject to any disorder of mind as shall "poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties".
94. It was also common ground before me that the Banks v. Goodfellow test for testamentary capacity has not been displaced by the Mental Capacity Act 2005, at least for the purposes of the present case, in which the 2006 Will was made before that Act came into force.
95. Without in any way detracting from the continuing authority of Banks v. Goodfellow, it must be recognised that psychiatric medicine has 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 is an example recognised by the law, and the affective disorder which may be caused by bereavement is an example recognised by psychiatrists, as both Dr Hughes and Professor Jacoby acknowledged. The latter described the symptomatic effect of bereavement as capable of being almost identical to that associated with severe depression. Accordingly, although neither I nor counsel has found any reported case dealing with the effect of bereavement on testamentary capacity, the Banks v. Goodfellow test must be applied so as to accommodate this, among other factors capable of impairing testamentary capacity, in a way in which, perhaps, the court would have found difficult to recognise in the 19^th century.
96. Banks v Goodfellow was itself mainly a case about alleged insane delusions. Many of the cases which have followed it are about cognitive impairment brought on by old age and dementia. The test which has emerged is primarily about the mental capacity to understand or comprehend. The evidence of the experts in the present case shows, as I shall later describe, 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 having the mental energy to make any decisions of his own about whom to benefit.
97. The burden of proof in relation to testamentary capacity is subject to the following rules:

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 [2007] EWHC 2599 (Ch) per HHJ Norris QC at paragraph 5.

98. Finally, the issue as to testamentary capacity is, from first to last, for the decision of the court. It is not to be delegated to experts, however eminent, albeit that their knowledge, skill and experience may be an invaluable tool in the analysis, affording insights into the workings of the mind otherwise entirely beyond the grasp of laymen, including for that purpose, lawyers and in particular judges. In the present case, both Dr Hughes (in his oral evidence) and Professor Jacoby (in his report) left me in no doubt that they both understood this limitation upon their role. Although they were both forthcoming in expressing their opinions, neither of them made any attempt to usurp the proper function of the court in that respect. Their contribution was of great assistance.
99. In the present case, there was due execution of the 2006 Will and it was, by common consent, eminently rational. Indeed, a powerful factor in favour the defendants' case generally was its fairness, to the mind of anyone who regards equal treatment between children as fair treatment. Accordingly, the evidential burden of proof in relation to testamentary capacity was, initially, transferred to the claimants as objectors.
100. I am nonetheless satisfied that a sufficient doubt as to Mr Key's testamentary capacity was raised by the claimants to transfer the burden in relation to it back to the defendants as propounders of the 2006 Will. Mr Key was both aged and, in psychiatric terms, infirm. He had just suffered the very recent and unexpected loss of his wife after 65 years of marriage, upon whom he was wholly dependent for his domestic care. The 2006 Will represented a radical departure from his last previously expressed testamentary intentions, in the 2001 Will, and it did so in favour of the two persons who had for the whole of the short period from his wife's death until the Will was made, shared responsibility for his daily care, and one of whom had telephoned Mr Cadge to attend on 4^th December to take instructions for the Will.
101. All those factors emerge from the uncontentious facts, and all of them, save perhaps for bereavement, are recognised as factors likely to give rise to real doubt as to testamentary capacity: see for example Williams on Wills (9^th edition) First Supplement (2009) at paragraph 4.17 and Harwood v. Baker (1840) 3 Moo PCC 282, at 290 and 297. At page 290 Erskine J said:

"… 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."

102. In my judgment the defendants have not discharged the burden upon them of showing that Mr Key had testamentary capacity when he executed the 2006 Will. On the contrary, I consider that on the balance of probabilities he did not. I have not found this at all an easy question, because there are significant pointers in both directions.
103. In the defendants' favour, at least at first sight, are the following considerations. First, on Mr Cadge's account of his meeting with Mr Key and Mary on 4^th December 2006, Mr Key gave instructions which on their face appeared to demonstrate all three of the positive Banks v. Goodfellow requirements, namely knowledge that he was disposing of his property with effect from his death, an ability to understand the extent of his estate, albeit with some prompting, and an understanding that all his children as well as his former employee Mr Seeley, had claims upon his bounty.
104. Nonetheless, for the reasons which I have given, I have been unable to place reliance upon the detail of Mr Cadge's evidence in this regard, save for his recollection that Mr Key said that he wished to leave his property to his daughters, and asked whether that was fair. I have not been satisfied that the provisions in favour of his sons, or in favour of his remoter issue in the event of the predecease of his children, were the result of Mr Key's decision at all. Mr Key's apparent assent to those provisions, and to the increased legacy to Mr Seeley, even as described by Mr Cadge, may have amounted to no more than the passive assent of someone who was at that particular time subject to an extreme degree of passive suggestibility. In my judgment, it was no more than that.
105. Secondly, the defendants have in their favour the careful opinion of Professor Jacoby that the combination of the mild cognitive impairment and of the affective disorder caused by his bereavement were not, singly or in combination, necessarily so severe as to destroy Mr Key's testamentary capacity. Furthermore, Professor Jacoby's opinion was that if Mr Cadge's witness statement was proven in full, Mr Key satisfied the first limb of the Banks v. Goodfellow test and may not necessarily have been unable to satisfy the second. Finally, Professor Jacoby's opinion was that if the court accepted that Mr Key's reason for changing his will was to achieve greater fairness, that was not an insane delusion within the meaning of the fourth limb of the Banks v. Goodfellow test. In fact, the claimants did not at any time suggest otherwise, and the evident fairness of the 2006 Will (from a perspective of equal treatment) is undoubtedly a factor in the defendants' favour.
106. It was however evident from the concluding paragraphs of Professor's Jacoby's report, and from his oral evidence, that he regarded the question whether Mr Key had testamentary capacity as finely balanced, and that he considered that Mr Key probably moved in or out of a condition of having such capacity quite frequently during the relevant period.
107. The factors weighing against a conclusion that Mr Key had testamentary capacity are as follows. First, the preponderance (in terms of reliability) of the evidence about his behaviour between the date of his wife's death and the making of the 2006 Will is, as I have explained in detail, probative of a conclusion that Mr Key was indeed devastated by his bereavement. It was in my judgment a severe affective disorder, perhaps sufficient on its own to have deprived him of testamentary capacity, but probably sufficient in combination with his mild pre-existing cognitive impairment. In that respect, I agree with Professor Jacoby that the cognitive impairment was probably insufficient on its own to deprive Mr Key of testamentary capacity, despite the developing short-term memory loss from which he was already suffering.
108. I have already referred to Professor Jacoby's opinion that bereavement can (although of course it does not always) give rise to symptoms equivalent to those caused by depression. Dr Hughes' evidence was to a similar effect. I was particularly impressed with his evidence during cross-examination, that affective disorder including depression, by which he also included bereavement, may lead to an increased suggestibility in the mind of the patient, so that he simply assents to suggestions from others, for example as to what is or is not fair, not caring to form his own view on the subject.
109. Professor Jacoby largely agreed with this. He said in cross-examination that distress caused by bereavement may make the sufferer suggestible, and may make him say anything to put an end to emotional pressure. He said that a severe reaction to bereavement may, like depression caused by other factors, impair attention and concentration, and the ability of the sufferer to take things in and remember them. He said that depression could itself cause cognitive impairment with symptoms similar to dementia, a condition that used to be called depressive pseudo dementia from which, unlike true dementia, the patient might recover once the factors causing the depression had passed.
110. More generally, Dr Hughes' evidence, based on his own detailed psychiatric examination of Mr Key conducted within five months of the relevant event, was powerfully supportive of the view that he lacked testamentary capacity in December 2006. Taking together his report and oral evidence, Dr Hughes' opinion may be summarised as follows:

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.

111. I deciding to place reliance upon Dr Hughes' evidence I have taken fully into account that he was at the time of his examination in April 2007 under the misapprehension that Mr Key had, to the extent that he was capable of doing so, authorised it. The defendants suggested that this undermined his findings, and that Mr Key' brief aggressiveness toward Dr Hughes flowed from his indignation at being subjected so a mental examination which he had not authorised. Dr Hughes was cross-examined about this, and persuaded me that his misunderstanding had not affected his diagnosis, both because he told Mr Key at the outset why he was there and because, having had the correct position explained to him in the witness box, he did not, upon reflection, alter his opinion in any way.
112. Professor Jacoby agreed that if Mr Key displayed the symptoms described by Dr Hughes it was unlikely that he had testamentary capacity at the time of the examination in April 2007. He also agreed that if Mr Cadge had known on 4^th December 2006 of Dr Duthie's views about Mr Key's mental condition, as reflected in his letter of 1^st March 2007, it would have been reasonable for Mr Cadge to have declined to take instructions, at least (I infer) without the benefit of a contemporaneous examination by a doctor directed specifically to his testamentary capacity.
113. While I have acknowledged the apparent fairness of the 2006 Will as a factor favourable to the defendants, I bear in mind that a uniform feature of all four of Mr Key's previous wills was an apparently complete non-recognition of any concept that fairness between children involved equality. While it is true that in the third of those wills he left Hall Farm to one of his daughters, that formed no part of equal treatment between them. While it is possible that Mr Key was a very late convert to the principle that fairness involves equality, that analysis falls well short of probability in my judgment. Furthermore the evidence did not reveal any significant change in Mr Key's or his children's personal or financial circumstances after 2001 which rendered the provisions of the 2001 Will no longer appropriate. Apart from a legacy of £15,000, and his personal chattels if she survived him, the 2001 Will only conferred upon his wife life interests in Mr Key's estate, so that her death did not necessitate a revision of it. It clearly contemplated that she might die first.
114. In summary therefore the combination of Dr Hughes' expert evidence, coupled with my inability to accept the detail of the evidence of Mr Cadge upon which both Professor Jacoby's opinion and more generally the defendants' whole case was heavily dependent, together with the preponderant weight of the evidence suggesting that Mr Key was devastated, rather than merely upset, by his wife's death, leads me to the conclusion that, in the words of Erskine J in Harwood v. Baker (supra) at page 297, Mr Key was "incompetent to the exertion required" for the purpose of making an important decision as to the disposition of his property upon his death.
115. This is not one of those cases in which it is possible to point simply to a conspicuous inability of the deceased to satisfy one of the distinct limbs of the Banks v. Goodfellow test. Rather it is a case in which I have been persuaded, taking the evidence as a whole, that Mr Key was simply unable during the week following his wife's death to exercise the decision-making powers required of a testator. In any event, the defendants have not discharged the burden of proving that he was. To the extent that such a conclusion involves a slight development of the Banks v Goodfellow test, taking into account decision-making powers rather than just comprehension, I consider that it is necessitated by the greater understanding of the mind now available from modern psychiatric medicine, in particular in relation to affective disorder.

KNOWLEDGE AND APPROVAL

116. A conclusion that a testator lacks testamentary capacity necessarily compels a conclusion that he did not know and approve the contents of his will. My conclusion that Mr Key lacked the requisite decision-making capacity means that he did not, because he could not, approve his will, even though he may have manifested an apparent assent to it, after hearing it read over to him. Approval in this context requires decision, not mere assent. Nonetheless, the issue was fully explored and argued, necessarily on the hypothesis that, by a small or greater margin, Mr Key had the requisite capacity. I shall therefore address the issue on the necessarily hypothetical and therefore rather artificial basis that he did.
117. Again, the law in this respect is well settled and was uncontroversial as between counsel. It was recently considered in detail by the Court of Appeal in Fuller v. Strum [2002] 1 WLR 1097, in particular per Chadwick LJ at paragraphs 65 to 72. In summary:

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.

118. Mr Ross Martyn for the defendants submitted that the circumstances of the present case were insufficient to give rise to any sufficient suspicion to require affirmative proof of knowledge and approval, and that in any event such proof was readily available if the court accepted Mr Cadge's evidence that Kr Key took the initiative in giving instructions for the 2006 Will, and assented to its terms after it had been read over to him twice, on different days, before executing it.
119. In my judgment this is a case where the element of suspicion arising from the circumstances, although by no means overpowering, is sufficient to call for affirmative proof of knowledge and approval, beyond that constituted by the due execution of a rational will. The grounds for suspicion overlap very largely with those which I have described as reversing the evidential burden of proof in relation to testamentary capacity. Although this was not a case in which Mary prepared the will, (as in many of the reported cases), it was one in which, at the material time, she had her father in her sole care, at a time when, even if he had capacity, his age, inability to care for himself, and suggestibility arising from his bereavement placed him in a position of extreme vulnerability to any suggestion from Mary that he should change his will in her and her sister's favour.
120. As Mary observed in cross-examination, her father's first question upon her arrival at Hall Farm three days after Sybil's death was "who is going to look after me?" The evidence of Elizabeth Ritchie (who arrived at Hall Farm just after the funeral) was that Mr Key did not want Mary to go back to America. A man who, by tradition and lifelong habit, regarded domestic care as something to be provided by women, can have been under no illusion that loving (rather than merely professional) care for him for the rest of his days depended critically upon the attitude of his daughters. He had, in fact, no good reason to doubt that his daughters, and his children in general, would continue to look after him, as indeed they and in particular Jane, Richard and his wife duly did. It is nonetheless impossible to conclude otherwise than that from the moment of his wife's death Mr Key was in a state of extreme vulnerability to his daughters.
121. I have described in detail how, contrary to Mary's evidence, and in the absence of any description from her of a discussion which must have taken place, I have arrived by inference at a conclusion that Mary did in forthright terms express her heartfelt sense of unfairness on reading the 2001 Will, and did suggest that her father should remedy it by leaving his remaining property to his daughters. That finding, coupled with the absence of any reliable evidence which persuades me that in apparently assenting to that suggestion, Mr Key applied his own mind and decision-making powers so as to reach the same conclusion for himself, is sufficient for me to conclude that the suspicion engendered by the circumstances has not been dispelled by the evidence.
122. Accordingly I find that it has not been shown that Mr Key knew or approved of the contents of his will, with the consequence that, for that reason as well, it ought not to be admitted to probate.

CONCLUSION

123. The result is, as is common ground in the event that the 2006 Will is not proved, that probate of the 2001 Will is to be granted without further ado. I will make a declaration in those terms.