Testamentary capacity and the Golden Rule

We look at ‘the golden rule’ in relation to will disputes – what it is, and why it is important

If you are worried that a close relative was unwell when they made their will, and did not really know or understand what they were doing, you may be considering challenging the will on the grounds of ‘testamentary capacity’. If this is the case, you will need to take a few steps back and find evidence relating to what was going on when your relative made his or her will. Not only will medical evidence be important, and perhaps anecdotal evidence from other relatives and friends, but you will need to establish whether the solicitor who drew up the will followed ‘the golden rule’.

What is ‘testamentary capacity’?

Testamentary capacity is a legal phrase which relates to the knowledge and understanding the person who makes a will, the Testator, has at the time they make the will. The question of testamentary capacity was considered by the courts in Banks v Goodfellow [1869 -70] LR 5 QB 549. A Testator must:

• Know and understand the nature of the will and its effect – it doesn’t mean and understanding of the legal terminology that might be used, but a broad understanding of what a will is and what it does; and how it will divide up property on his or her death.
• Have an understanding of the assets they own – property and other assets such as savings and financial investments – although they do not need to be able to itemise every single thing they own!
• Understand that there are people he or she might normally be expected to provide for in a will – dependent children for example – and not be affected by some condition such as dementia, that might stop him from providing for those people.

If all these conditions are met, then the Testator can be said to have testamentary capacity – and the fact that he or she did not provide for someone cannot be challenged on this basis.

What is the Golden Rule?

The ‘Golden Rule’ places a requirement on a solicitor or will writer to assess whether the Testator has testamentary capacity – and if necessary to obtain medical evidence to support this. The idea of the golden rule was explained in a case in the 1970s called Kenward v Adams ChD 29 November 1975, but which was also followed in Re Simpson [1977] 121 SJ 224, when the court held that “… the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.”

It may be uncomfortable to suggest to an elderly client – or even a client who is not elderly, but who perhaps displays some erratic behaviour – that they should have their state of mind assessed and recorded by a doctor, but if you’re a solicitor preparing a will, it’s an important step to take. In a will dispute where testamentary capacity is in issue, and the golden rule has not been followed, the will may well be overturned, although it is not a ground for overturning the Will on its own account.

What can you do?

If you are looking to challenge a will on the grounds that the Testator did not have testamentary capacity, you will need to obtain as much evidence as possible about his or her mental state at the time the will was drawn up. This can include letters or other communications from the Testator at the time, medical records, and statements from people who knew the Testator. If we are instructed to challenge a will, we will also seek the files from the solicitor involved in drawing up the will, to see if they followed the Golden Rule at the time.

To discuss how the Golden Rule might have a bearing on the will dispute you are considering bringing, get in touch.