Key v Key

[2010] WTLR 623; [2010] EWHC 408 (Ch

11th March 2010

High Court


This was a probate action. The court held that a will made by an elderly farmer was invalid because he lacked testamentary capacity. Because the will was invalid on this ground, the question whether the testator knew and approved of its contents did not in strictness arise. Nevertheless the court considered it, because it had been fully argued, and held that, if it had arisen, it would have been decided against the will. The case is important as emphasising, yet again, the importance of observing the “Golden Rule” that where a testator is elderly, or has suffered a serious illness, his will should be witnessed or approved by a doctor, who ought then to record his examination. It is also important because it is authority that the test of capacity to make a will should take into account decision-making powers rather than just comprehension. This is a slight development of the traditional Banks v Goodfellow test.

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