Has The Golden Rule Lost Its Lustre?

Charles Holbech reviews the importance of a medical opinion for the aged or infirm testator

In Re Simpson [1977] Templeman J said that:

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 satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and findings.

The 'rule', therefore, appears to be that a medical opinion of testamentary capacity should always be obtained in the case of an aged testator, or a testator who suffers from a serious illness, even if there are no obvious indicators of lack of capacity.

The value of a medical opinion is that a friend, or a non-medical professional adviser, such as a solicitor, may fail to detect defects in mental capacity which would become apparent to a trained and experienced medical examiner who understands the test for testamentary capacity (Cowderoy v Cranfield [2011] at para 137). If a medical opinion is obtained certifying capacity, this may go a long way to avoiding a subsequent probate claim based upon lack of capacity.

Judicial criticism of solicitors who fail to observe the golden rule

In Key v Key [2010], Mr Key, an 89-year-old farmer made a will ten days after the unexpected death of his wife of 65 years, providing for the bulk of his estate to be divided between his two daughters. In stark contrast, under his previous will, his estate had been left, subject to his wife's life interest, equally to his two sons. A solicitor (Mr Cadge) had, two days before, attended upon Mr Key at his home, at the request of one of the daughters, Mary. Mary accompanied Mr Key to the solicitor's offices on the day when he executed his will.

The court found that Mr Key was devastated by the recent death of his wife when he made his will. This amounted to a severe affective disorder which on its own, or together with the mild dementia from which Mr Key was suffering, deprived him of testamentary capacity.

The solicitor was roundly criticised by the judge who said:

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.

Further analysis of Key can be found in 'For the record', by Ian Burman, TELTJ123 January/February 2011 p26.

Golden rule not determinative

A number of judges have, however, emphasised that a failure to follow the golden rule is not determinative of testamentary capacity. It is a matter of good solicitors' practice, not a rule of law. Its value is in avoiding disputes. Therefore, a failure to follow the golden rule will not necessarily mean that the will is invalid for lack of capacity. As Sonia Proudman QC said in Allen v Emery [2005], at para 24:

It is undoubtedly a desirable precaution, and one which can save a deal of trouble in the future, for a solicitor to observe the golden rule where there is the possibility of dispute as to testamentary capacity. Failure to do so, however, is not in my judgment determinative; the rule is no more than prudent guidance for a solicitor ... Ultimately capacity is a question of fact like any other which the court must decide on the evidence as a whole.

Therefore, where evidence has been called on both sides as to the testator's mental capacity, reference to the golden rule is rather like crying...