Key and Another v Key and Others

Hearing dates: 18 th– 22 nd February 2010

Approved Judgment

I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Briggs:

INTRODUCTION

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.

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.

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.

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.

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

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.

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 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.

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

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.

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

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.

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.

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.

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.

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...