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How mental health disorders are treated in will disputes (bereavement)

14 Oct 2021

Much like the rest of society, the legal world is evolving to better understand the impact and effect of mental health disorders. Using examples, this blog series will explore how different mental health disorders have historically, and more recently, been treated in the context of Will validity claims.

The requirements for a valid Will

Under section 9 of The Wills Act 1837, a valid Will requires the following elements:

  • The Will must be in writing;
  • It must be signed by the Testator (the person making the Will); and
  • The Testator must have an intention for the Will to be valid when signing it.

In addition, the Testator’s signature must be witnessed, or acknowledged, in the presence of at least two witnesses.

Can a Will be Contested? – Grounds of Invalidity

After a Testator has died and their Will comes into effect, there are a number of grounds upon which an individual may challenge that Will, the most common include claims:

  • That the Testator lacked testamentary capacity;
  • That the Testator lacked knowledge and approval in relation to the Content of the Will;
  • That undue influence was exerted over the Testator;
  • Of Forgery or Fraud; and
  • Of Lack of due execution.

There is a clear link between the potential impact of a mental health disorder and the validity of a Will. Dependent on the mental health disorder in question, there may be particular issues surrounding capacity, knowledge and approval, or the testator’s vulnerability to coercion.

The Mental Health Act 1983

The Mental Health Act 1983 defines a Mental Health disorder as ‘any disorder or disability of the mind’. Clearly, this can encompass a wide range of mental health disorders which can have a wide range of effects on a testator. This blog post is going to focus particularly on the impact of bereavement on mental health when making a Will.

Key v Key

Whilst bereavement in itself may not initially be thought of as a mental health disorder, the case of Key v Key [2010] EWHC 408 (Ch) found that in this instance, the bereavement was so significant that it could amount to a severe affective disorder.

The facts of the case concern the deceased Testator, Mr George Key, who made a new will (“the New Will”) only one week after the death of his late wife of 65 years. The meeting with the solicitor had been instigated and organized by one of the deceased’s four children, Mary.

The terms of the new Will were particularly favourable to Mary and her sister, in contrast to the deceased’s previous Wil which, after his wife, left everything to be divided between his two sons. This was not considered unusual considering the two sons had spent their lives working on the family farm which comprised most of the estate.

The two sons successfully challenged the Will on the grounds that the deceased had lacked testamentary capacity and lacked knowledge and approval of the content of the Will.

Medical evidence and witness statements revealed the level of distress that the deceased was facing, particularly with the death of his late wife having been so sudden, the fact that he was suffering from a mild pre-existing cognitive impairment, and the fact that he was incredibly reliant on his wife day-to-day and his inability to make decisions as a result.

The court emphasised that this was not a case where it was possible to simply point to the deceased’s inability to satisfy one part of the Banks v Goodfellow test (for further details on this please see here) but, instead, when taking the evidence as a whole, it was clear that the deceased was unable to exercise the decision making powers of a testator.

In so doing, the court had developed the test so as to consider the deceased’s decision making powers beyond ‘comprehension’ which it considered was necessitated by a “greater understanding of the mind now available from modern psychiatric medicine, in particular in relation to affective disorder[s]”.

The court considered that in this state, the deceased was susceptible and vulnerable to the actions of those around him. While not amounting to coercion in this instance, it was held that the deceased had not been exercising his own thoughts in making the Will and subsequently did not have knowledge or approval of the contents.

The impact of Banks

The case highlighted that the impact of the bereavement on the deceased mirrored  symptoms of severe depression. In turn, this case may also give an understanding of how depression of the Testator could potentially be treated in the context of contesting a Will.

It is important to stress that this case will not be an indicator for every Will made after an individual has suffered from a bereavement, or is suffering from depression.

It was the specific facts and the severity of the symptoms of bereavement combined with the testator’s suffering of a pre-existing cognitive impairment that enabled the Will to be contested successfully.

Nevertheless, this case demonstrates the legal system adapting to developments in modern psychiatric medicine and highlights the versatility of the Banks v Goodfellow test.

How we can help

For more advice on contesting a will, please contact our specialist team.

Written by

Dino Sikkel

Managing Associate