Effect of bereavement upon capacity

21 October 2010

Both the High Court and the Court of Appeal have been examining the perennial issue of testamentary capacity.  In the recent High Court case of Key v Key, the Court reiterated the importance of the ‘Golden Rule’  that a Solicitor should consult a medical practitioner if he or she is in any doubt in respect of the mental capacity of the testator.

In this case, a Solicitor was called to the family home by a relative to take details from the testator only a week after his wife of 65 years had died and the Solicitor proceeded to draft a Will without taking any proper steps to satisfy himself as to the testator’s testamentary capacity.  The Judge decided, after hearing all the evidence, that the testator was devastated by his wife’s death and that the impact of bereavement on a person’s wellbeing and ability to think clearly should not be overlooked.  In all the circumstances of the case, he found that the testator did not have the necessary capacity.

For further information on wills, please contact Digby Armstrong  by emailing Digby  or by calling him on 01293 527744,, or speak to your usual contact in the Wills, Trust and Probate Team.