This week’s blog post is intended to supplement the guidance provided in C-PAID’s previous posting about “testamentary incapacity”.
It is provided as guidance for those who fear that their loved-one made a Will that they might not have understood, and are suspicious of the circumstances as to how that will came about.
What is the golden rule?
The golden rule is merely suggested guidance for solicitors and other will-drafters about the precautions that should be taken to ensure that the will-maker is capable of providing proper instructions for the Will.
It is recognised that there are a multitude of factors which might impact on a person’s ability to make a will. Old age, or mental disease, or physical ailment, or the influence of intoxicating substances, or even the effects of bereavement have been known to affect a person’s ability to understand the act of making a will for example, or to properly appreciate those potential beneficiaries who have at least a moral claim to provision from the estate.
The Courts expressed the Golden Rule back in the 1970’s, in a passage that has been quoted many times since. The Judge (Templeman J) said in the case of Kenward v Adams (ChD 29th November 1975):
“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding”.
When should it be followed?
Whenever instructions for a Will are taken from an elderly or frail person, it is wise for the will-drafter to be cautious about the will-maker’s ability to make a will.
That being said, following this rule is not compulsory. In reality, it is merely a statement of good practice on the part of the will-drafting solicitor.
Nevertheless, evidence of compliance with the rule can reduce the prospects of a claim that asserts that the will-maker lacked testamentary capacity.
What are the effects of not following the golden rule?
By the same token, evidence that the golden rule has not been followed, particularly if there are reasons to doubt the will-maker’s state of mind, may leave the will-drafting solicitor open to allegations of negligence.
The fact that it is not been observed in the recommended circumstances ought to be treated as being at least controversial.
It is suggested here that, if the will-maker suffers from any illness which can affect his/her mental sensibilities, especially such conditions as dementia, Alzheimer’s, Parkinsons etc, or a serious physical condition such as cancer, a head injury, or a stroke etc, or has received any medical treatment that includes the administration of potentially mind-altering drugs, then the will-drafter should reasonably have been put on notice that the will-maker might have diminished capacity.
It is further suggested that, when a will-maker has reached an age where the statistical incidence of age-related illnesses starts to increase, precautions should be taken to ensure that he/she has the necessary will-making capacity.
If you have a concern that your loved-one might not have been in the right frame of mind to make a Will, and that the solicitor did not take the necessary precautions, contact us for free advice.
If there is a suitable case to be made, our panel of specialist contested probate solicitors will assist you on a No Win No Fee basis.